澳大利亚金融消费者保护体系及其借鉴

本文介绍了澳大利亚的金融消费者保护体系。ASIC是澳大利亚的金融消费者保护机构,其职责范围广泛,负责整个金融业监管和金融消费者保护以及征信、破产清算、金融咨询等机构的监管,同时强调信息收集与披露。金融消费纠纷具有多元化的解决方式,并由独立的第三方机构负责处理。金融消费者教育则被纳入澳大利亚国家战略。     

The ancillary insolvency proceeding

The main legal acts on International Insolvency Law (the European Regulation, the UNCITRAL Model Act and the European Convention on Certain International Aspects of Bankruptcy) lay down several local proceedings with substantive effects as regards the debtor, the distribution of proceeds and the ranking of claims. These—full—proceedings are characterized by a high degree of unpredictability and prove to be inadequate for creditors. These are the reasons why, as an immediate solution, the existing insolvency rules should be reinterpreted according to a certain logic of the market. However, such revision would only partially and provisionally solve the inconveniences of the current model. The true and ‘unsolvable’ problem is that even though the full local proceeding is based on international assistance, it alters the substantive insolvency rules. Therefore, in future it would be necessary to create a truly ancillary proceeding. Such a proceeding would not have any substantive effect as regards the debtor, the creditors and third parties, nor would it require any kind of distribution of proceeds and ranking of claims. However, this proceeding would enable to provide procedural assistance to foreign courts and procedural protection to local creditors. Copyright © 2010 John Wiley & Sons, Ltd.     

Promoting fairness in English insolvency valuation cases

This is the second part of a comprehensive study on fair measurement of value in English insolvency law. The author has already demonstrated in a previous article the importance of posing and responding to questions about fairness in the insolvency process. That article developed a specific framework to measure whether assets and businesses are fairly valued in insolvency and bankruptcy cases. The proposed communitarian, fairness‐oriented framework is based on a modified version of Rawls, Finch and Radin's concepts of fairness. It evidenced that, when assessed against fairness, none of the valuation techniques currently available to the courts are without limitations. Building on the findings of this previous work, this article investigates whether English case law: (i) achieves a fair valuation of the debtor's assets and business; and (ii) protects interested parties (mainly creditors and shareholders) who have realistic prospects of receiving a distribution‐ against unfair harm.     

Ethics and conflicts,the role of insolvency professionals in the integrity of the Canadian bankruptcy and insolvency system

Insolvency practice involves a balance between adherence to rules of ethical conduct and the avoidance of conflicts of interest, and the need to find cost effective methods of debt collection or restructuring under the statutory regime. Potential conflicts of interest are inherent in the multiple roles granted to such professionals under the insolvency system, whether the financial distress is personal or commercial. This article begins to explore whether or not these conflicts serve as barriers to the effective administration of the insolvency and bankruptcy system. It also examines whether oversight of professional ethics and avoidance of conflicts is a matter for legislative intervention or best left to the profession, including temporal and materiality issues in disclosure of potential conflicts, and accountability to stateholders through the appointment process. The key issue is how one manages those conflicts while maintaining the integrity of the system. Copyright © 2004 John Wiley & Sons, Ltd.     

Maritime cross‐border insolvency in China

Due to the high degree of mobility of ships and the special operational structures of shipping companies, it is difficult to harmonise the cross‐border insolvency regime with the maritime law regime governing ships. One of the typical examples is the recent bankruptcy of Hanjin Shipping Co Ltd. Chinese creditors were heavily affected by the bankruptcy of Hanjin. However, Hanjin never filed an application to have its Korean insolvency proceeding recognised in the People's Republic of China (PRC). Nor did it commence any ancillary insolvency application under the Enterprise Bankruptcy Law of the PRC. Taking Hanjin's bankruptcy as an example, this article examines the current statutory regime of cross‐border insolvency in the PRC in detail and analyses the approach adopted by the Chinese courts to resolve the conflicts that arise between the cross‐border insolvency and maritime law regimes.     

Genesis of the European initiative in insolvency law

This article deals with the history behind the initiative that led to the adoption of the European Insolvency Regulation 2000. It covers the background to the proposals, the content of the various drafts that have merged over the past four decades and criticism of the proposals by commentators. Copyright © 2003 John Wiley & Sons, Ltd.     

Sons of Gwalia: defrauded shareholders' claims in insolvency

The recent Australian High Court decision in Sons of Gwalia v Margaretic abolished the rule that defrauded shareholders claims should be subordinated to the claims of general creditors in insolvency. This paper examines the decision, discusses its potential implications and explores whether it should be overruled through legislative amendment. Copyright © 2008 John Wiley & Sons, Ltd.     

Disclaiming onerous property in insolvency: A comparative study

Insolvency practitioners in charge of certain insolvency procedures have a facility open to them to disclaim property deemed to be onerous and whose retention as part of the debtor's estate may affect the mass of creditors. This article takes a comparative survey of a number of jurisdictions in the common‐law and civil‐law worlds. Its purpose is to assess whether work carried out at international level seeking to benchmark insolvency procedures generally should be revised to take into account enviornmental concerns in relation to such disclaimed property. Copyright © 2010 John Wiley & Sons, Ltd.