International Insolvency Review最新文献

The conversation about how artificial intelligence (AI) might affect various areas of law (and other areas of life) has, in recent months, centred around ChatGPT which is just one application of AI. This article takes a broader view and assesses how AI, and technology more broadly, has begun to transform, and will continue to transform corporate insolvency law. While the pandemic has increased the adoption of technology in corporate insolvency processes, there is scope for further transformation. This article aims to survey the technological changes to corporate insolvency law and practice thus far and assess, based on current advances in technology, the potential for further transformation. It advances the argument that technology can improve efficiencies both prior to and during formal insolvency resolution processes. It therefore would be in the interests of every country to facilitate the adoption of technology at various points in the insolvency process. The article takes a cross-jurisdictional approach to identify tech advances in insolvency law across different countries based on which best practices and guidelines can be outlined.

In advanced jurisdictions, the choice of a non-consensual debt restructuring is between a public or a private gatekeeper model where either the court or the licensed insolvency professional respectively approves a restructuring plan that binds dissenting creditors. In the United States, the only gateway is found in Chapter 11 of the Bankruptcy Code 1978, which requires court approval and gives the debtor a significant say in the outcome. In contrast, in the United Kingdom, there exist four gateways, only two of which require court approval (scheme of arrangement and restructuring plan), while the remaining two (administration and company voluntary arrangement) give significant powers to the insolvency practitioner to decide on the outcome. In emerging jurisdictions such as Mainland China and India, due to path dependency and lack of institutional capacity, the court-supervised model is chosen as the only or primary gateway to legitimise non-consensual restructurings though the insolvency practitioner has an important statutory role. Using the two jurisdictions as case studies, this article argues that such a choice has several initial benefits but also leads to several problems, including delays in the restructuring, does not necessarily improve substantive outcomes and does not adequately address the shareholder–creditor and creditor–creditor agency costs. This article proposes that for debt restructuring that involves the sale of the business as a going concern, the private gatekeeper should be able to decide on the sale and the distributions following pre-bankruptcy entitlements. Recourse to the court as a public gatekeeper should only be used for reorganisation proceedings.

This article deals with the European Union's efforts to harmonise the insolvency laws of its Member States. In particular, it explains the Directive on restructuring and insolvency, its key features and disparities and its transformation in national laws. Further, the European Commission's proposal for a Directive on harmonising certain aspects of insolvency law is introduced.

This article sets out general principles for designing the role of corporate insolvency courts. The authors identify four general considerations relevant to that design: (a) the sophistication and development of the relevant private markets and private law, (b) the applicable background corporate law principles, (c) the competence—in terms of experience and sophistication, capacity and resources, efficiency, and neutrality and lack of corruption—of the courts in question, and (d) the availability of alternative systems through forum and venue shopping or other forms of exit. Having identified these considerations, the article then explores how each affects the role that insolvency courts should play and the level of discretion courts should exercise. The authors also discuss the extent to which other procedural or insolvency provisions can substitute for judicial oversight and discretion.