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.     

Reconsidering the Shareholder's Role in Corporate Reorganisations under Insolvency Law

A corporate reorganisation under insolvency law is commonly achieved by virtue of a reorganisation plan that provides for the distribution and sacrifice of value among all stakeholders in an insolvent company. Although the creditors' right to vote on such plans and to participate in the wealth distribution according to such plans is universally accepted, the role of old equity in a corporate reorganisation remains a topic that jurisdictions all over the world define very differently. This article first explores possible approaches to shareholders' treatment under insolvency law and supports their inclusion in insolvency proceedings that pursue corporate reorganisations. It then argues that equity interest should not solely be treated according to its economic value and consequently that no absolute priority rule should be applied against them as such treatment would ignore the fundamental difference between liquidation and reorganisation. Finally, it proposes a new cram‐down rule for a class of equity holders. Copyright © 2013 INSOL International and John Wiley & Sons, Ltd.     

Some Consequences of Insolvency Law Reform

In 1985 and 1986, the United Kingdom introduced major substantive reforms to its insolvency legislation. A number of jurisdictions are presently considering radical reform in this area, and the author sets out some of the lessons, both good and bad, which can be learned from the British experience. En 1985 et 1986, le Royaume-Uni modifia substantiellement se législation sur l'insolvabilité. Actuellement. plusiers juridictions envisagent des réformes radicales dans ce domaine. L'auteur présente quelques-unes des lecon, positives et négatives, qui peuvent être tirées de l'expérience britannique.     

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.     

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     

The Emerging Role of the European Commission in Merger and Acquisition Monitoring: The Boeing–McDonnell Douglas Case

The object of this study is to evaluate the consequences of the application of the EEC Regulation 4064/89 to non–European companies. We focus on the Boeing–McDonnell Douglas merger case, one of the first non–European mergers considered by the Commission. The analysis of abnormal returns on the two securities shows that the threat of a ban of the merger by the Commission were not perceived as credible at first. But when Boeing decided to ask the support of the American government, just after the decision of the European Commission to extend its investigations to the long term exclusivity contracts, the role of the Commission emerged.     

Emerging Market Business Cycles: The Role of Labor Market Frictions

Emerging economies are characterized by higher variability of consumption and real wages relative to output and a strongly countercyclical current account. A small open economy model with search‐matching frictions and countercyclical interest rate shocks can account for these regularities. Search‐matching frictions affect permanent income, and increase future employment uncertainty, heightening workers' incentives to save and generating a greater response of consumption and the current account. The greater consumption response feeds into larger fluctuations in workers' willingness to work, while interest rate shocks lead to variations in firms' willingness to hire; both of these outcomes contribute to highly variable wages.     

Business Rescue in Insolvency Law in Europe: Introducing the ELI Business Rescue Report

In a European study, written under the auspices of the European Law Institute, the authors have designed elements of a legal framework that will enable the further development of coherent and functional rules for business rescue in Europe. Based on the recommendations of international organisations, such as UNCITRAL and the World Bank, as well as the insolvency laws of EU Member States, comparative research has led to a lengthy report of 10 chapters and more than 100 recommendations which are described in this article. They range from the need for professional and honest parties involved in the process (insolvency practitioners, turnaround managers, courts and company directors) to the evaluation of specific tools (such as a stay on enforcement actions of creditors and forms of available finance) and procedural safeguards to enable serious rescue efforts of viable businesses, while protecting justified interests. Copyright © 2018 INSOL International and John Wiley & Sons, Ltd.     

Banking and Regulation in Emerging Markets: The Role of External Discipline

This article reviews the main issues of regulating and supervisingbanks in emerging markets with a view toward evaluating thelong-run options. Particular attention is paid to Latin Americaand East Asia. These economies face a severe policy commitmentproblem that leads to excessive bailouts and potential devaluationof claims of foreign investors. This exacerbates moral hazardand makes a case for importing external discipline (for example,acquiring foreign short-term debt). However, external disciplinemay come at the cost of excessive liquidation of entrepreneurialprojects. The article reviews the tradeoffs imposed by externaldiscipline and examines various proposed arrangements, suchas narrow banking, foreign banks and foreign regulation, andthe potential role for an international agency or internationallender of last resort.      

Time to Endorse the ISAs for European Use: The Emerging Markets' Perspective

On many important accounting problems there seems to be a gap in knowledge and understanding between the academic world and those whose views are most prominent in public debate. The paper explores the reasons for this gap, and suggests that the biggest problem is the perception of irrelevance. The paper discusses how the gap can be narrowed, using ICAEW's Information for Better Markets work, in particular on business reporting models, as an example.     

The Context for Cross‐Border Insolvency Law Reform in Sub‐Saharan Africa

Cross‐border insolvency literature has developed significantly in recent years. However, the scholarship that has evolved lacks an insight from the perspective of Sub‐Saharan Africa (SSA). Existing theories on cross‐border insolvencies, and the global insolvency benchmarks that emerged in the recent years, have almost exclusively been developed from the best practices obtained in advanced economies. Accordingly, the context within which SSA cross‐border insolvency reform may be undertaken must be determined and explored given the pressure towards globalisation and the potential for the pressure to result in unsuitable legislative reform. This article sets out the context for cross‐border insolvency law reform in SSA. It raises issues that are likely to arise during the reform process and challenges that may be faced. Copyright © 2014 INSOL International and 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.     

Bridge over Troubled Water: The Revised Insolvency Regulation

The EU legislature has used the last two and a half years to negotiate a modernised framework for cross‐border insolvencies largely outside the spotlight of public debate. The revised Insolvency Regulation introduces new rules on secondary proceedings and innovative provisions on insolvency proceedings for groups of companies. Some parts of the final reform package were not originally envisaged by the European Commission, and it was the European Parliament and the Council that, in an unusual display of unity, agreed on more ambitious steps than the EU executive had proposed. However, not all that glitters is gold. The legislature missed the opportunity to clarify the concept of Centre of Main Interest, and it is still for the courts to establish international jurisdiction on the basis of rather vague criteria. It will soon be time to give life to the rules and ensure that cross‐border insolvencies are conducted more effectively than they are today. The new rules entered into force on 25 June 2015 and apply from 26 June 2017. Copyright © 2015 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.     

International Recongnition of Foreign Insolvency Proceedings: The Canadian Perspective

The movement towards liberalization of world trade laws and the increasing economic interdependence between nations has increased the potential for international insolvencies. This article examines the extent to which Canadian courts recognize foreign insolvency proceedings and contrasts the Canadian approach with the approaches taken in the United Kingdom and the United States. La libéralisation des lois commerciales internationales et l'interdépendance économique croissante entre les pays ont augmenté les possibilités de faillites. Cet article examine dans quelle mesure les tribunaux candiens reconnaissent les procédures étrangères relatives à la faillite et contraste l'approche canadienne avec celles du Royaume-Uni at des États-Unis.     

Emerging powers as fact and metaphor: Some European ideas

Emerging powers appear to be rather diverse although some of them, like China and India, are mapping the world. They can be countries or regions, social scapes and flows, economic networks or global cities. They emerge after several decades of global flexible capitalism and the rise of regional networks and city-states. In order to meet contemporary challenges, emerging powers need the experience of coherence of older homogeneities as well as the complexities of extended, differentiated societies and social structures. This new step in recent globalization has to be mediated and understood. The European cultural memory of conflict, mediation and negotiation may enable Europeans to let emerging powers grow beyond the world of traditional empires and their global economies, beyond the worlds of nation-states and their international economy, and beyond the world of liberal empires and their global economy. This reflexivity and complexity may enable the social sciences to play an important public role, which they have not had for many decades, if they understand their moment.     

Some Observations on the New Group Coordination Procedure of the Reformed European Insolvency Regulation

The recast of the European Insolvency Regulation introduces a new coordination procedure for handling insolvencies of groups of companies. The procedure relies on a group coordinator to create a helpful group insolvency plan while the individual insolvency proceedings remain independent. Albeit being a step into the right direction, the procedure has significant shortcomings such as the weak position of the coordinator, a liberal opt‐in and opt‐out mechanism and the problem of forum shopping. In the end, the new procedure can be a valuable tool in limited cases and should be merely seen as an addendum to a variety of possibilities to handle group insolvencies. Copyright © 2015 INSOL International and John Wiley & Sons, Ltd     

Role of Insolvency Practitioners in the UK Pre‐pack Administrations: Challenges and Control

The pre‐pack administrations (‘pre‐packs’) in the UK have repeatedly been criticised for allowing the exploitation of certain types of unsecured creditors. In this context, the role of the administrators (who are qualified insolvency practitioners) is one of the key elements. This article examines the new challenges brought by the pre‐pack strategy to the conventional role of insolvency practitioners as the administrators. It suggests that the pre‐determination nature of pre‐packs is likely to make the administration proceedings less manager‐displacing in practice than the formal rules would suggest. Although this tendency can be expected to facilitate information gathering during the rescue negotiations, it raises urgent questions with respect to the potential alignment of interests between the inside players that may impair the impartiality of the administrators. In response to such challenges, the article argues that, in spite of the recent proposals of introducing drastic statutory regulation to control the controversy of the pre‐pack practice, a proportionate way is to see how the existing control mechanisms can contribute more in reinforcing the independence of administrators. Copyright © 2012 John Wiley & Sons, Ltd.