The European Insolvency Regulation and the UNCITRAL Model Law on Cross‐Border Insolvency

This article compares the Recast European Insolvency Regulation of 2015 with the UNCITRAL Model Law on Cross‐Border Insolvency of 1997, focussed on their scope of application, international jurisdiction and the coordination of main and secondary proceedings. The scopes of both catalogues of norms and their rules on coordination of main and secondary insolvency proceedings reflect one another. However, the Recast EIR makes a significantly greater contribution to the unification of law and is also more fully differentiated and more precise, even if this comes at a price, namely, limited flexibility. The UNCITRAL Model Law made an important contribution to the harmonisation of international insolvency law but requires now modernisation. Copyright © 2017 INSOL International and John Wiley & Sons, Ltd.     

The UNCITRAL Model Law on Cross‐border Insolvency and the Rule of Law

The rule of law is a concept that was often considered in the context of national legal systems. However, it is now commonly being promoted as significant in the transnational context. This paper addresses its importance within the transnational economic and commercial context, in particular in response to cross‐border insolvencies. It examines how the UNCITRAL Model Law on Cross‐border Insolvency and its Guide to Enactment and Interpretation promote key tenets of the rule of law in transnational disputes arising out of businesses in financial distress. In particular, some examples are provided of cases from the Asia‐Pacific region in which the Model Law has been applied to demonstrate how the rule of law may be promoted in an insolvency context. Finally, the paper concludes that the adoption of the UNCITRAL Model Law on Cross‐border Insolvency promotes transparency, accountability and predictability, which in turn support stability in financial systems and credit relationships and thus trade within a global market. This is a direct result of adherence to elements of the rule of law principle. Copyright © 2016 INSOL International and John Wiley & Sons, Ltd. Copyright © 2016 INSOL International and John Wiley & Sons, Ltd     

Should reciprocity be a part of the UNCITRAL Model Cross-Border Insolvency Law?

In 1997, the United Nations Commission on International Trade Law adopted a Model Law on Cross Border Insolvency. Since then, many countries have passed it or a revised version of it. In many cases, the adopting country wrestled with the issue of whether to include a reciprocity provision in its version. Some have included such a provision, others have not. The inclusion of a reciprocity provision is not consistent. This article discusses the concept and argues that a reciprocity provision could be detrimental to the operation of the Model Law and prejudicial to the parties; especially those in the country whose legislation includes such a provision. Copyright © 2007 John Wiley & Sons, Ltd.     

A Reform in Search of a Purpose: French Insolvency Law Changes (Again!)

This article charts the additions made by the French legislator to the insolvency framework, reformed relatively recently in 2005 and 2008, consisting in a fresh set of amendments in 2014 aimed at encouraging more take up of upstream rescue proceedings as well as improving the existing procedures.     

Northern Lights,Canada's version of the UNCITRAL Model Law on Cross‐Border Insolvency

Statute of Canada Chapter 47, when it is proclaimed in force, will largely adopt the UNCITRAL Model Law on Cross‐border Insolvency. The current and proposed cross‐border provisions could be considered Canada's “Northern Lights”, evolving constantly, but aligning with the objectives and scope of the UNCITRAL Model Law. While Chapter 47 is a modified version of the Model Law, it continues Canada's regime as one of modified universalism, with a strong commitment to comity and coordination. There are likely to be contests for control over the scope of foreign proceedings, although arguably, no more so than under the language of the Model Law. The most critical issues to resolve in the short term are definitions of COMI where corporate groups are involved, and the issue of the scope and extent of possible concurrent main proceedings, both areas left to the discretion of the courts in their interpretation of the legislation's domestic, as well as cross‐border, provisions. Copyright © 2007 John Wiley & Sons, Ltd.     

INSOL Europe's Proposals on Groups of Companies (in Cross‐Border Insolvency): A Critical Appraisal

International bodies have started addressing the problem of cross‐border insolvency of corporate groups fairly recently. The United Nations Commission on International Trade Law has adopted a set of recommendations and the European Commission may tackle the matter in the near future, in the process of revising the European Insolvency Regulation (the ‘Regulation’). It is, therefore, timely to evaluate major proposals for the Regulation's amendment regarding groups, suggested by INSOL Europe. The paper critically evaluates the proposals regarding coordination of group cases and the concept of substantive consolidation. This evaluation takes account of both the variety of possible group structures and the goals the insolvency regime would aim to achieve. Copyright © 2012 INSOL International and John Wiley & Sons, Ltd.     

Modelling as a Tool for Cross‐border Analysis of the Position of Insolvency Office Holders

This paper presents a framework and a model applied to make a cross‐border analysis of the position of Insolvency Office Holders. Both the framework and the model were developed in the course of an assignment to design Principles and Best Practices for Insolvency Office Holders for INSOL Europe. The framework is developed by induction from a variety of sources of rules and regulations regarding Insolvency Office Holders, while the model subsequently has been derived by deduction from the framework. Finally, the paper shows how this method assisted in determining the issues to be covered by Principles and Best Practices. The authors argue that commencing international legal comparison with abstract reasoning and modelling may lessen the effect of researcher's academic or professional blind spots and cultural bias and has the potential to enhance the value of cross‐border analysis in terms of coherence, consistency and completeness. Copyright © 2016 INSOL International and John Wiley & Sons, Ltd     

Unifying Rule Induction and Rule Refinement—Towards Discovering Anomaly from Granville's Law in a Stock Market Technical Analysis

This paper discusses a framework for refining an initial object-level rule base with a rule induction to learn meta-level rules which find a data set applicable to an object-level rule. A rule induction process such as ID3 tries to learn meta-level rules and classifies given training data sets into positive data sets and negative ones. The rule refinement process tries to refine an initial object-level rule base on classified data sets by using four refinement strategies. Unifying these two processes, one can obtain a refined object-level rule base with high performance where a meta-level rule selects a data set applicable to it. In order to evaluate the framework, an experiment on real Japanese stock price data shows that a refined object-level rule base, which comes from the initial object-level rule base for representing Granville's Law, has a performance beyond that of the average stock price. The performance is difficult for human technical analysts in a stock market to achieve. The result implies that the framework could create an anomaly from Granville's Law in a stock market technical analysis.     

The Costs and Benefits of Regulating the Market for Corporate Insolvency Practitioner Remuneration

The release by the Australian Treasury on Friday, 7 November 2014 of the Insolvency Law Reform Bill (ILRB) 2014 throws the spotlight once again on corporate insolvency law reform in Australia. Significantly, the ILRB 2014 identifies amongst its purposes two objectives with respect to Corporate Insolvency Practitioner (CIP) remuneration reform. Namely, to promote market competition on price and quality and improve the overall confidence in the professionalism and competence of insolvency practitioners. This paper considers whether the proposed CIP remuneration reforms outlined in the ILRB 2014 will effectively achieve these objectives. Where it is considered that reforms are misdirected, further changes, informed by UK insolvency reform proposals, are considered.     

Unqualified Directors in Insolvency: A Comparative Study on the Desirability of Civil Law Directors' Disqualification in the Netherlands

The current global economic, and therefore political, climate has given rise to legislative responses within insolvency law, aiming to increase the legal arsenal against fraudulent behaviour. A recent proposal of the Dutch government to introduce a civil law disqualification instrument is a quintessential example of this tendency. In this article, the usefulness of this proposal is questioned. The usefulness of the civil law instrument is tested by comparing it with its Dutch criminal law equivalent. Furthermore, several proposals for alteration, based on foreign counterparts, will be formulated in order to increase the effectiveness of the aforementioned arsenal as a whole. Comparisons are made with similar instruments in Australia, England, Germany and the USA. Throughout the article, it will be asserted that, in order for the proposal to optimally reflect the principles of effectiveness and its civil law nature, a reallocation of certain elements of the proposal to its criminal law equivalent is required. Copyright © 2014 INSOL International and John Wiley & Sons, Ltd     

Market Based Management™*—A Key to Nucor's Success

Ken Iverson, CEO of Nucor Corporation, transformed Nucor from the virtually worthless corporate shell that it was when he took over as president in 1966 into a Fortune 500 giant with current shareholder value in excess of $5 billion. How did Iverson do it? What are the secrets to his outstanding success? This article argues that an important part of the answer is Market Based Management, a relatively new set of management values and practices that aims to bring the power of a free-market society inside companies. Stated in brief, Market Based Management attempts to replace the traditional “command-and-control” management approach with decentralized decision-making that is designed to make full use of employees' “specific knowledge.” Employees' expanded decision-making authority is reinforced by a powerful incentive compensation system that rewards them handsomely for achieving corporate goals. The result, according to the authors, is highly motivated employees who “take ownership” for their role in contributing to the success of the enterprise.     

Competency‐Based Education and Assessment for the Accounting Profession: A Critical Review*

In recent years many professional accounting associations have become interested in establishing competency‐based professional requirements and assessment methods for certifying accounting professionals. A competency‐based approach to qualification specifies expectations in terms of outcomes, or what an individual can accomplish, rather than in terms of an individual's knowledge or capabilities. This idea has an obvious appeal to many practitioners and administrators of professional qualification programs. However, there is limited knowledge about competency‐based approaches in the accounting profession and among accounting academics, which is constraining discussion about the value of these approaches and about the strengths and weaknesses of the different competency models that have sprung up in various jurisdictions. In this paper we review and synthesize the literature on competency‐based approaches. We identify a number of theoretical benefits of competency‐based approaches. However, we also find many alternative definitions and philosophies underlying competency‐based approaches, and a variety of visions of how competencies should be determined and assessed. We note that there is limited evidence supporting many competency‐based approaches and we identify 14 research questions that could be used to help policy makers to more effectively address policy matters related to competency‐based education and assessment.     

Market switching in shipping — A real option model applied to the valuation of combination carriers

This paper derives a real options model of flexibility and applies it to shipping, valuing the option to switch between the dry bulk market and wet bulk market for a combination carrier, a ship type that is capable of operating in both markets but that has fallen out of favor due to high price tags. The model is a mean-reverting (Ornstein–Uhlenbeck) version of a standard entry–exit model with stochastic prices. A closed form solution for the value of flexibility is derived, expressed in terms of Kummer functions. The estimated value of flexibility is related to historical price differentials between combination carriers and oil tankers of comparable size. Based on numerical experiments it is concluded that new combination carriers may enter the market in the near future.     

Recent Development in Recognition of and Assistance to Foreign Insolvency Representatives Under the Hong Kong Common Law

Although Hong Kong has neither enacted nor launched any plan to enact a statute addressing cooperation and assistance on cross‐border insolvency matters, recently, a unique Hong Kong approach dealing with recognition and assistance in cross‐border insolvency is gradually forming under common law. Thanks to the efforts made by the Companies Court of the Hong Kong High Court, insolvency representatives appointed in the place of incorporation of the debtors may, firstly, be accorded a certain degree of automatic recognition and cooperation based on traditional private international law rules without going through a recognition procedure and, secondly, be recognized and granted active assistance under principle of universalism at common law. With regard to the limits of this common law power, the court has referred to but not strictly followed the British Privy Council's decision in Singularis Holdings Limited v. PricewaterhouseCoopers (Singularis) and instead followed the previous approach in Cambridge Gas Transport Corp v. Official Committee of Unsecured Creditors (of Navigator Holdings PLC and others) (Cambridge Gas). The Companies Court also attempted to simplify and facilitate the application and grant of this common law recognition and assistance through a series of innovations. Copyright © 2018 INSOL International and John Wiley & Sons, Ltd.     

The Winner's Curse Model of Underpricing: A Critical Assessment

The underpricing of Initial Public Offerings (IPOs) on equity markets is a well documented phenomenon that has received both theoretical and empirical inquiry. The model which has received most attention in recent years is Rock's (1986) Winner's Curse model. The paper critically evaluates this model and shows that it rests on a number of conflicting assumptions and a form of analysis which is in contradiction with its core hypothesis, and, furthermore, produces propositions that are largely untestable. Thus, any existing empirical support for the model is open to doubt. The paper concludes that further exploration of the underpricing phenomenon is warranted.     

2021年资本市场的主线是什么

文章在梳理过去五年每年的政策主线基础上,提出2021年国内政策重心从稳增长切换为防风险,特别是防范美股暴跌的“灰犀牛”风险,这可从政策表态中得到印证。然而,当前市场可能对海外风险冲击、对国内政策主线的认知不足。一、年初以来,种种迹象表明国内政策重心从稳增长切换为防风险,2021年已经过去一个季度,在3月份与投资者密集路演交流中,普遍感觉到机构的纠结和迷茫。究其原因,笔者认为在市场经历了过去一年以“抗疫”为主线的行情后,市场可能尚未明确贯穿2021年的投资主线,投资和研究上缺乏明确的抓手。     

Harmonisation of European Insolvency Law and the Need to Tackle Two Common Problems: Common Pool and Anticommons

Insolvency law has finally become a field of law for which harmonisation at a European level is considered both important and feasible. In deciding upon the content of such harmonised rules, there will need to be a common understanding about the goals of insolvency law and, therefore, a European debate on bankruptcy theory. Bankruptcy theory, and most notably the influential creditors' bargain theory, has long viewed insolvency law as a set of rules for overcoming common pool problems. Bankruptcy theory thus far has almost completely overlooked anticommons problems. Anticommons present themselves in a situation in which there are several owners or entitled parties, and each of the parties has it within its power to block the use by others. Should anticommons behaviour in insolvency procedures go unchecked, creditors as a whole will be harmed. Insolvency is a collective process, and this process may not be sabotaged by a single party. Four typical insolvency issues, each identified by INSOL Europe as a candidate for harmonisation at a European level, are discussed, analysing them in terms of common pool problems and anticommons: preferences, reorganisation/composition plans, claim validation and insolvency of a group of companies. Copyright © 2012 John Wiley & Sons, Ltd.     

‘Brexit’ and International Insolvency Beyond the Realm of Mutual Trust

The outcome of the referendum held in the UK in June 2016 is of far‐reaching and unpredictable consequences. This article focuses on the particular field of international insolvency with a view to identifying some of them, all arising out of the fact that the UK will be leaving the EU area of justice and the strong cooperation based on mutual trust between member states. This will make UK–EU insolvency cases clearly less efficient and effective. The consequences of Brexit could be mitigated by the already existing coordination among the international instruments dealing with these matters, in particular the European Insolvency Regulation and the UNCITRAL Model Law on Cross‐Border Insolvency. However, not all EU member states have in place rules dealing with these issues as regards to third states. In order to lessen the impact of Brexit in this sensitive area of law, the implementation of the Model Law in order to deal with extra‐EU cross‐border insolvency could be of avail. Copyright © 2017 INSOL International and John Wiley & Sons, Ltd