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Group concerns and communication and cooperation between practitioners under the European Insolvency Regulation (Part II) International Insolvency Review (IF 0.646) Pub Date : 2024-03-08 Sid Pepels
In this article, the author examines with a specific focus on the insolvency practitioner to what extent the Recast European Insolvency Regulation's provisions on communication, cooperation and coordination between the main actors in group companies' insolvency proceedings allow for efficient restructurings of those group companies. In doing so, the author will, at points, compare the provisions in
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A principled examination of US bankruptcy law and the accounting for value in conversions between chapters 7 and 13 International Insolvency Review (IF 0.646) Pub Date : 2024-02-06 Gavin Ritter
This article focuses on the apportionment and distribution of post-filing pre-conversion increases in equity of assets in a debtor’s estate when a debtor converts from a Chapter 13 to a Chapter 7 bankruptcy proceeding. Through an examination of the history of the US Bankruptcy Code and adequate examination of differing approaches, this article argues that courts should adopt the position that the post-filing
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Predicting repeat consumer bankruptcy: A survival analysis of business-related repeat filings in Australia 2007–2021 International Insolvency Review (IF 0.646) Pub Date : 2024-02-05 Catherine Robinson, David Smith, Mark Wicht, Amanda Rice, Gavin McCosker, Ignatius McBride
Ongoing legislative responses to the impacts of the pandemic have prompted many countries to evaluate whether their bankruptcy systems remain fit for purpose. Moreover, the current climate highlights the importance of data-driven policy, which the literature identifies as a deficiency of bankruptcy regimes. In Australia, the 2015 reform proposals to reduce the default discharge period from 3 years
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Re Simplicity & Vogue Retailing (HK) Co Ltd [2023] HKCFI 1443 (HCCW 457/2022, 30 May 2023) (coram Linda Chan J) [case comment] International Insolvency Review (IF 0.646) Pub Date : 2024-02-01 Kenneth Zealot Tsui
The impact of an exclusive jurisdiction clause on a winding-up petition is settled in the English and Singaporean common law jurisdictions. In Hong Kong, the matter has recently been decided in the case of Re Guy Kwok Hung Lam (2023) 26 HKCFAR 119. Nonetheless, a similar issue has been brought up again in the cases of Re Simplicity & Vogue Retailing (HK) Co Ltd [2023] HKCFI 1443 (HCCW 457/2022, 30
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Debt restructurings, debt grifting and the limits of contractualism International Insolvency Review (IF 0.646) Pub Date : 2023-12-14 Gerard McCormack
This article critically examines corporate restructuring plans and schemes in the United Kingdom and United States and third-party releases in the context of such corporate restructurings. So far, the practice has been more extensively examined in the United States rather than the United Kingdom and the practice has been castigated as ‘debt grifting’, that is, third parties getting the benefit of a
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Small and state-funded: An empirical study of liquidations in Scotland International Insolvency Review (IF 0.646) Pub Date : 2023-12-01 Jonathan Hardman, Alisdair MacPherson
There is significant scope for empirical research in the field of corporate insolvency law. This paper seeks to make a valuable contribution to this field of research. It features analysis of data regarding all insolvent liquidations in Scotland that had their end point within a period of a year, specifically 1 October 2019-30 September 2020 (even if the liquidations commenced prior to that period)
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An empirical snapshot of English corporate insolvencies International Insolvency Review (IF 0.646) Pub Date : 2023-11-29 Asad Khan
The article presents an empirical study of English corporate insolvencies initiated between December 2016 and December 2018. The research focuses on creditors' voluntary liquidations (‘CVLs’), the most frequently occurring insolvency procedure. It also looks at a few administrations and compares findings with CVLs to analyse which procedure may lead to better returns to creditors. The article highlights
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Is insolvency stigmatised? International Insolvency Review (IF 0.646) Pub Date : 2023-11-29 Emilie Ghio, Donald Thomson
It is a commonly held belief that there exists a sense of stigma around insolvency, which explains the low uptake of rescue procedures in the United Kingdom and around the world. We assess the accuracy of this claim through two qualitative studies. The first is conducted through interviews with corporate directors in the United Kingdom. The second study is a comparative literature review in selected
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Group concerns and communication and cooperation between practitioners under the European Insolvency Regulation (Part I) International Insolvency Review (IF 0.646) Pub Date : 2023-11-27 Sid Pepels
In this article, the author examines with a specific focus on the Insolvency Practitioner to what extent the Recast European Insolvency Regulation's provisions on communication, cooperation and coordination between the main actors in group companies' insolvency proceedings allow for efficient restructurings of those group companies. In doing so, the author will, at points, compare the provisions in
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Crypto custodians in financial distress International Insolvency Review (IF 0.646) Pub Date : 2023-11-23 Dominik Skauradszun, Jeremias Kuempel
The business model of crypto custodians is relatively new. If these companies fall into financial distress, the question arises as to which legal framework is applicable to them. Since jurisdictions such as the US, the Swiss, the German, and recently also the European Union place crypto custodians under financial supervision, it seems reasonable to assume that the numerous European legal acts for these
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Bank crisis management and resolution after SVB and Credit Suisse: Perspectives from India and the European Union International Insolvency Review (IF 0.646) Pub Date : 2023-09-30 Neeti Shikha, Ilias Kapsis
The March 2023 bank failures of Silicon Valley Bank, Signature, and Credit Suisse, which caused turmoil in financial markets and led to regulatory and central bank intervention, revived the debate about the effectiveness of the bank crisis management, resolution, and deposit insurance legal framework established after the Global Financial Crisis. Although the March 2023 events did not escalate into
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A critical analysis of India's pre-pack regime for MSMEs International Insolvency Review (IF 0.646) Pub Date : 2023-09-26 Urmika Tripathi
Hybrid restructuring procedures, such as pre-packs, have been encouraged to deal with an expected increase in insolvent firms in the aftermath of the COVID-19 pandemic. Pre-packs have been gaining popularity as a restructuring mechanism across the world. India too introduced a pre-packaged insolvency resolution process for micro, small and medium enterprises (MSMEs) in April 2021. This article first
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The future of corporate insolvency law: A review of technology and AI-powered changes International Insolvency Review (IF 0.646) Pub Date : 2023-09-07 Akshaya Kamalnath
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
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Insolvency courts: General principles for systems design International Insolvency Review (IF 0.646) Pub Date : 2023-09-05 Anthony J. Casey, Joshua C. Macey
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
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Pre-insolvency frameworks: Developments in the European Union International Insolvency Review (IF 0.646) Pub Date : 2023-09-05 Reinhard Bork
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.
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Chasing assets abroad: Ideas for more effective asset tracing and recovery in cross-border insolvency International Insolvency Review (IF 0.646) Pub Date : 2023-08-04 Janis Sarra, Stephan Madaus, Irit Mevorach
Asset tracing and recovery (ATR) has become highly challenging in the digital age, where, with the touch of computer keys, assets can be shifted through multiple jurisdictions within minutes, creating significant challenges for recovering value. While many countries have tools to enable ATR, these tools differ from jurisdiction to jurisdiction and often are not recognized across borders in a manner
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A theory of relativity in restructuring developed with the Coase Theorem International Insolvency Review (IF 0.646) Pub Date : 2023-08-01 Matti Engelberg
This article addresses a key topic in restructuring law, namely the alternative legislative rules for setting priorities for payments and rights among stakeholders in a statutory restructuring programme. The EU Member States have now implemented the Restructuring Directive (2019/1023), which gives two options for the priority rules and the outcomes of the new laws seem to vary significantly. As this
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Cross-border insolvency law in India: Are the principles of comity of courts and inherent common law jurisdiction relevant? International Insolvency Review (IF 0.646) Pub Date : 2023-08-01 Andrew Godwin, Risham Garg, Debaranjan Goswami
Deliberations are in the final stages for enacting a cross-border insolvency law in India based on the UNCITRAL Model Law on Cross Border Insolvency 1997 (‘Model Law’). The cross-border insolvency regime in India will provide an avenue for recognising foreign insolvency proceedings in India. Although it is a matter of time before India adopts the Model Law, it is important to examine whether there
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Valuation of cryptoassets in EU insolvency: Challenges and prospects International Insolvency Review (IF 0.646) Pub Date : 2023-04-14 Theodora Kostoula
How and when to determine the value of cryptoassets in insolvency proceedings? This question becomes more topical with the increasing adoption of volatile cryptoassets such as Bitcoin. As many of these assets do not have an ‘apparent’ value that may be readily ascertainable, it is not always clear how their value may be established. This presents significant challenges to their proper valuation in
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Natural person ltd.: Towards a unified discharge regime for entrepreneurs and consumers International Insolvency Review (IF 0.646) Pub Date : 2023-04-19 Gauthier Vandenbossche
Personal insolvency proceedings are increasingly fulfilling an economic function, aimed at the rehabilitation of the debtor. The idea of the fresh start and second chance, including an early discharge of residual debts, is an important illustration thereof. Despite the fact that this evolution is noted in all personal insolvency procedures, both with regard to entrepreneurs and consumers, debt discharge
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Global trends in the treatment of local public entities in distress: A principled approach International Insolvency Review (IF 0.646) Pub Date : 2023-04-13 Laura N. Coordes, Yseult Marique, Eugenio Vaccari
This article presents the findings of a global study on the treatment of local public entities in distress conducted in 20 jurisdictions across the world. It sets out to detail and analyses how different national insolvency law systems treat local public entities in distress. The main purpose of this study is to provide recommendations for a harmonised and principled treatment of these entities. The
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A comparative analysis of the Australian and New Zealand liquidation schemes International Insolvency Review (IF 0.646) Pub Date : 2023-04-05 Lynne Taylor
On September 28, 2022, Australia announced an inquiry into the effectiveness of its corporate insolvency laws. The Australia and New Zealand corporate insolvency frameworks have similar objectives and operate in a similar context where, as is the case the world over, most companies are small to medium enterprises. Despite liquidation being just one of several collective and formal corporate insolvency
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Guest editorial International Insolvency Review (IF 0.646) Pub Date : 2022-11-06 Peter J.M. Declercq
Against the broad background of existing “Earth law”, this article aims to provide an initial assessment of existing “Space law” to start the conversation about what is still needed from a legal perspective to best facilitate the ongoing “commercialisation of Outer Space”. This article considers the ongoing commercialisation of Outer Space primarily from a legal perspective, investigating the rol law
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An invisible man, a double agent, and a five-tool player: Three issues for the Chief Restructuring Officer in Korean corporate reorganization procedures International Insolvency Review (IF 0.646) Pub Date : 2022-09-15 Jae Yup Chung, Byoung Kyu Lee
The Chief Restructuring Officer (CRO) system in Korea was introduced in 2011 after the Debtor Reorganization Act adopted the Debtor-in-Possession (DIP) system in 2006. However, the introduction of the CRO system in Korea, which was based on the American system, was problematic due to the lack of legal grounds, the vagueness of its legal status, and the complexity of its roles. This article explores
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The future of insolvency law in a post-pandemic world International Insolvency Review (IF 0.646) Pub Date : 2022-09-11 Aurelio Gurrea-Martínez
The COVID-19 crisis has encouraged many countries to amend their insolvency laws. In most cases, these amendments took place temporarily, especially during the hibernation phase of the pandemic. In other countries, however, the pandemic has led to permanent changes in their insolvency legislation. More importantly, the COVID-19 crisis has accelerated the insolvency reforms that were already on the
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Law and macro finance of corporate debt: Managing the business cycle through bankruptcy International Insolvency Review (IF 0.646) Pub Date : 2022-09-08 M. Konrad Borowicz
This article proposes that, as a matter of policy, the bankruptcy law protections of creditors offering to lend money to large firms in a boom should be weaker than those of creditors offering to lend to such firms in a bust. The policy goals of bankruptcy law under this proposal, inspired by the theoretical framework for Law and Macro Finance, are to curb booms, mitigate the effects of booms gone
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What is an insolvency proceeding? Gategroup lands in a gated community International Insolvency Review (IF 0.646) Pub Date : 2022-09-02 Riz Mokal
Many English (and other) restructuring lawyers consider that the scheme of arrangement cannot properly be characterized as an insolvency proceeding for the purposes of certain international instruments for (amongst other things) the allocation of jurisdiction and/or the recognition of proceedings, judgments, and/or orders. This article shows that this view is mistaken. The article examines insolvency
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Embracing universalism: The new Brazilian cross-border insolvency regime International Insolvency Review (IF 0.646) Pub Date : 2022-08-25 Paulo Fernando Campana Filho
This article provides an analysis of cross-border insolvency provisions in Brazil after the enactment of a recent legislative reform incorporating the UNCITRAL Model Law on cross-border insolvency, in the context of the country's legal tradition and territorialist history, and of the first cases ruled on the matter.
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Evolution of consumer bankruptcy in Poland: A chance for a new life for insolvent debtors? International Insolvency Review (IF 0.646) Pub Date : 2022-03-07 Monika Maśnicka, Joanna Kruczalak-Jankowska
This article discusses the issue of the evolution of consumer bankruptcy in Poland which was introduced into Polish law in 2009. The authors explain why the legislator abstained from introducing consumer bankruptcy along with a huge reform of insolvency framework in 2003. They present different approaches of the legislator towards consumer bankruptcy – from a very restrictive one which excluded most
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The normative and Jural meanings of the anti-deprivation principle vis-à-vis freedom of contract International Insolvency Review (IF 0.646) Pub Date : 2022-03-05 Eugenio Vaccari
Contracts and clauses negotiated by the parties with the objective purpose of depriving the debtor of assets upon insolvency contravene the collective, mandatory nature of insolvency procedures and, consequently, the anti-deprivation principle. This article provides a theoretical conceptualisation of the normative meaning of the anti-deprivation principle by marking its separation from the principle
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Assaf's winding up in insolvency, Farid AssafSC (3rd edition) (2021, LexisNexis Australia, Sydney), 1012 pp., AUD 235, ISBN 9780409352818 International Insolvency Review (IF 0.646) Pub Date : 2022-02-22 Jason Harris
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Rembrandt's money: The legal and financial life of an artist‐entrepreneur in 17th century Holland, BobWessels, 1 edn. Wolters Kluwer, Deventer; 2021. xxxiv + 458 pp., EUR 65, ISBN 9789013164893 International Insolvency Review (IF 0.646) Pub Date : 2022-02-08 Maurits den Hollander
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Adding mediation to India's corporate resolution process International Insolvency Review (IF 0.646) Pub Date : 2022-02-07 Akshaya Kamalnath, Aparajita Kaul
India's new insolvency law, the Insolvency and Bankruptcy Code 2016 (‘IBC’) was introduced to improve the efficiency of the resolution process. Although there is much to be credited in the law, the practice of it has shown that the process is often delayed by excessive litigation. This article aimed to study delays under the IBC by looking at the application of the law and providing an alternative
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Optimising fairness in insolvency and restructuring: A spotlight on vulnerable stakeholders International Insolvency Review (IF 0.646) Pub Date : 2022-02-02 Jennifer L. L. Gant
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American business bankruptcy: A primer. StephenLubben, 2 edn. Cheltenham: Edward Elgar Publishing; 2021. 204 pp., GBP 63, ISBN 978‐1‐80037‐919‐0 International Insolvency Review (IF 0.646) Pub Date : 2022-01-18 Jennifer L. L. Gant
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Confidentiality, Secrecy and Privilege in Corporate Insolvency and Bank Resolution, by ShuaiGuo and BobWessels, 1 edn. The Hague: Eleven International Publishing; 2020. 200 pp, EUR 75, ISBN 978‐94‐6236‐167‐6/978‐90‐5931‐794‐9 (ebk) International Insolvency Review (IF 0.646) Pub Date : 2021-12-21 Giulia Vallar
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The legal restructuring framework in Poland: Does it help indebted enterprises avoid bankruptcy? International Insolvency Review (IF 0.646) Pub Date : 2021-12-15 Ulyana Zaremba
The purpose of the article is to present the latest research regarding the usefulness of restructuring proceedings in Poland, which enterprises threatened with insolvency or already insolvent may use to avoid bankruptcy. Changes in the legal system in Poland in 2015 were ground-breaking, as not only the bankruptcy law was amended, but also the legal system was enriched with a new Restructuring Law
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The promise and perils of regulating ipso facto clauses International Insolvency Review (IF 0.646) Pub Date : 2021-12-13 Janis Sarra, Jennifer Payne, Stephan Madaus
It is common for contracts to include a clause that provides that on an event of default the counterparty has an unconditional right to terminate the contract or accelerate payment (an ipso facto clause). The regulation of ipso facto clauses has become a topic of debate in recent years with a number of jurisdictions introducing constraints on such clauses as part of broader restructuring reform packages
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Preventive restructuring frameworks: Jurisdiction, recognition and applicable law International Insolvency Review (IF 0.646) Pub Date : 2021-12-09 Jessica Schmidt
The Preventive Restructuring Directive (PRD) has triggered a new era of regulatory competition. Member States are introducing new laws aimed at making themselves the new destination of choice for corporate restructuring. However, the PRD has failed to provide a clear answer to some key issues: international jurisdiction, recognition and applicable law. This article analyses these questions in detail
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Disclosure obligations of a debtor under the Singapore scheme of arrangement: Lessons from England and the US International Insolvency Review (IF 0.646) Pub Date : 2021-12-07 Alfino Zijian Eu
The Singapore scheme of arrangement has received considerable attention from the international community in recent years due to the Chapter 11-inspired reforms enacted in 2017. However, an overlooked, and perhaps underdeveloped, aspect of the Singapore scheme has been the disclosure obligations of the debtor throughout the scheme process. This article seeks to provide a critical evaluation of the disclosure
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Sequana I: Struggling with section 423 of the Insolvency Act 1986 International Insolvency Review (IF 0.646) Pub Date : 2021-12-02 Reinhard Bork
This article deals with the Court of Appeal's decision in Sequana, particularly with its comments on sec. 423 IA 1986. It puts this norm in relation to other appearances of the actio pauliana in national insolvency laws and shows that sec. 423 IA 1986 is shaped rather uniquely, which makes its application unnecessarily difficult.
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Implementing an insolvency framework for micro and small firms International Insolvency Review (IF 0.646) Pub Date : 2021-08-14 Aurelio Gurrea-Martínez
Micro-, small-, and medium-sized enterprises (MSMEs) represent the vast majority of businesses in most countries around the world. Despite the economic relevance of these firms, most insolvency jurisdictions do not provide adequate responses to MSMEs. Moreover, with a few exceptions, the academic literature on insolvency law has not traditionally focused on the treatment of MSMEs in insolvency. This
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The European Restructuring Directive and stays on creditor enforcement actions International Insolvency Review (IF 0.646) Pub Date : 2021-08-02 Gerard McCormack
The European Restructuring Directive is Europe's answer to Chapter 11 of the US Bankruptcy Code. Under the Directive, debtors will have access to early warning tools that enable them to detect a deteriorating business and this should lead to more restructurings at an early stage. The debtor will benefit from a time-limited ‘breathing space’ from enforcement action in order to facilitate negotiations
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Directors' duties to prevent insolvent trading in a crisis: Responses to COVID-19 in Australia and lessons from Germany International Insolvency Review (IF 0.646) Pub Date : 2021-09-22 Stacey Steele
This article considers relief from directors' duties to avoid trading whilst insolvent during the COVID-19 pandemic in Australia and Germany. Comparative insolvency law literature traditionally compares Australia to jurisdictions such as the United Kingdom and New Zealand. However, Germany has a track record of using insolvency law to manage social and economic crises. The German approach suggests
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Harmonising insolvency law in the EU: New thoughts on old ideas in the wake of the COVID-19 pandemic International Insolvency Review (IF 0.646) Pub Date : 2021-09-15 Emilie Ghio, Gert-Jan Boon, David Ehmke, Jennifer Gant, Line Langkjaer, Eugenio Vaccari
While the harmonisation of insolvency law in the European Union (EU) has been a top priority on the European institutions' agenda in the last decade, it is well known that this endeavour has been slow and has often met resistance from the Member States. The COVID-19 pandemic revealed that top-down harmonisation of insolvency (i.e., introduced at EU level) has been temporarily halted. The urgency to
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The future of harmonisation of directors' duties in the European Union: The Preventive Restructuring Directive and group insolvencies International Insolvency Review (IF 0.646) Pub Date : 2021-09-12 Ilya Kokorin
The European Union (EU) Preventive Restructuring Directive seeks to harmonise directors' duties with the goals of promoting early responses to financial distress and rescuing viable enterprises. However, due to the persistent differences in substantive laws and traditions of EU Member States – most notably concerning the recognition of group interest in company and insolvency law, general and imprecise
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Re Hydrodec Group [2021] NSWSC 755 [case comment] International Insolvency Review (IF 0.646) Pub Date : 2021-09-09 Scott Atkins,Kai Luck
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Three waves: The United Kingdom insolvency response to the pandemic International Insolvency Review (IF 0.646) Pub Date : 2021-09-07 Russell Orr,Paul Omar
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Principles and rules on insolvency practitioners' remuneration International Insolvency Review (IF 0.646) Pub Date : 2021-09-07 Meng Seng Wee, Yan Yu Kiu
Overcharging by insolvency practitioners is a problem that has invited legislative and judicial intervention in several commonwealth jurisdictions, and it continues to be a concern in many of them. Such regulation is justified because of the failure of unsecured creditors to effectively monitor and control the practitioner's charges, leading to failure in the insolvency practitioners' services market
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The law and economics of lockdown mitigation: Bankruptcy errors in the United Kingdom International Insolvency Review (IF 0.646) Pub Date : 2021-09-07 Jonathan Hardman
The United Kingdom Government has undertaken unprecedented economic activity to support UK business during the COVID-19 pandemic. This article applies the law and economics of corporate bankruptcy to these provisions. In particular, it examines whether legal responses to the pandemic encourage Type I bankruptcy errors (where a company that could be saved enters a terminal insolvency process) or Type
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European preventive restructuring: Article‐by‐article commentary. Edited by Christoph Paulus and Reinhard Dammann (eds) (1st edition) (2021, Beck/Hart/Nomos, Munich/Oxford/Baden‐Baden) 297 pp., EUR 180, ISBN 978340675350 (Beck)/ISBN 9781509938810 (Hart)/ISBN 9783848769551 (Nomos) International Insolvency Review (IF 0.646) Pub Date : 2021-08-23 Catarina Serra
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The European Restructuring Directive. Gerard McCormack (1st edition) (2021, Edward Elgar, Cheltenham) 336 pp., GBP 145 (ebk GBP 116), ISBN 978‐1‐78990‐880‐0 International Insolvency Review (IF 0.646) Pub Date : 2021-08-20 Ilya Kokorin
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A critical evaluation of the new cram-down tool in Singapore's restructuring regime International Insolvency Review (IF 0.646) Pub Date : 2021-05-11 Ken Teo Chuanzhong
Singapore has recently reformed its insolvency regime in its efforts to be an international restructuring hub. To that end, Singapore has attempted to take an autochthonous approach in adapting several of the legal tools from the US Chapter 11 for reforming its own restructuring regime. This article seeks to critically evaluate the cross-class cram-down mechanism in Singapore, which has been implemented
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