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

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

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

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

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

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

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

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.

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

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

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

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

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

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

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

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

As a general principle of the law of the European Union, legitimate expectations should be respected as much as possible. The EU Regulation on Insolvency Proceedings (recast) (EIR) aims to achieve this goal by providing a comprehensive set of rules governing the choice of law in cross-border insolvency cases. Despite the academic criticism targeted at these rules, they remained intact in the recast

After the COVID-19 crisis has subsided, the (further) harmonization of bank insolvency law will again be high on the agenda of EU regulators and policymakers. On the basis of an analysis of the status quo pain points, this article advocates the extension of the BRRD resolution regime to all bank failures, regardless of their systemic relevance. This could be achieved by removing the public interest

The article analyses the use of substantive consolidation in view of the meaning of limited liability in Brazil and explores the proposition that such a solution to corporate distress should only exceptionally be imposed on creditors. In light of Brazilian corporate law, a court should only order substantive consolidation if continuous dishonest use of legal personality had occurred before the debtors

This article identifies one aspect of the cross‐class cram‐down from the EU Directive on restructuring and insolvency that has not drawn wide attention to date. In addition to giving EU Member States the option of a “relative priority rule,” the European legislator has introduced a new “best interest of creditors” test, which does not—like in Chapter 11 of the US Bankruptcy Code—use the value that

In June 2019, the European Union adopted the Directive on Preventive Restructuring Frameworks. The objective of the Directive is to introduce a level‐playing field across all Member States in the area of pre‐insolvency restructuring. Member States have until 2021 to transpose the Directive into their domestic insolvency regimes. In April 2019, the French legislator adopted the “Pacte Law”, whose aim

This article examines the general scope of application of the provisions on insolvency regarding members of a “group of companies”, as included in Chapter V of the European Insolvency Regulation (recast) (“Recast EIR”), in order to review whether that scope is appropriate to deal with the different group structures in which business may be conducted. With the definition for a “group of companies” playing

It is common for insolvency legislation to interfere with the property rights of debtors, creditors and third parties in pursuit of its purpose to provide an orderly and fair resolution to insolvency‐related problems. However, the South African property clause, Section 25 of the Constitution, prohibits arbitrary interferences with vested property interests. In light of this, this article focuses on

Italy is about to enforce the first comprehensive reform of its corporate insolvency framework since the Second World War. The new Codice della Crisi d'Impresa e dell'Insolvenza builds on international recommendations, European laws and foreign best practice. One area that has been subject to substantial influence from foreign models is preventive insolvency mechanisms, where the Italian Legislator

The EU Directive on Preventive Restructuring Frameworks gives the EU Member States (“MSs”) the choice between implementing two fairness rules in cross‐class cram‐down: the US‐style absolute priority rule (“APR”) or the newly conceived relative priority rule (“RPR”). This article argues that there is no good reason for the MSs to implement the RPR in domestic law. While the APR effectively protects

The following article addresses the issue of the duration of insolvency proceedings (both winding‐up and reorganization) and its influence on the efficiency of the proceedings. The previous opinion presented in the literature, according to which shorter and cheaper insolvency proceedings contribute to establishing enterprises, has been recently reflected in a Directive of the European Parliament and

The role of judges in restructuring and insolvency proceedings has been of particular interest to the EU legislator in recent years. It is in matters of insolvency and restructuring that a court and its judges have to fulfil a set of five criteria: (a) a general understanding of business management (so as not to assume managerial tasks), (b) understanding what is needed to effectively enforce the rights

This article addresses the problem of the position of equity holders in restructuring proceedings, tackling a new issue in the overall European scenario of insolvency law, where innovative rules have been introduced on this topic in Germany (ESUG), France (loi Macron), Spain (ley concursal), besides the new provisions laid down by the EU Preventive Restructuring Directive Overall, these rules target

The performance of the courts has been at the center of both political and public debates around the world and is one of the success indicators in the development of public policies on access to law and justice, particularly as regards the right to obtain a decision in reasonable time. The introduction of new information and communication technologies has been essential in extending this access to

How insolvency courts handle conflicts is an important aspect of the Directive on preventive restructuring frameworks and it has become more important in the current COVID-19 crisis, as a result of which insolvencies are or will be on the rise. Insolvency courts are one of the key actors that can impact the length and costs of conflicts, and, consequently, the effectiveness and efficiency of insolvency

On February 19, 2020, the Small Business Reorganization Act of 2019 went into effect in the United States. This statute was intended to make the rescue regime of Chapter 11 of the United States Bankruptcy Code more effective for smaller businesses that would not otherwise have the financial wherewithal to complete a traditional Chapter 11 reorganization. This article describes the central innovations

The company law landscape in Malaysia has witnessed a significant change in its insolvency law with the adoption of two new corporate rescue mechanisms, the corporate voluntary arrangement and judicial management under the Companies Act 2016 (CA 2016), which has repealed the Companies Act 1965 (CA 1965). Previously, the insolvency laws under the CA 1965 were based on the traditional pro‐creditor laws

The legislation of the European Union has addressed the private international law aspects of civil and commercial matters and those of insolvency cases separately. While the Brussels Ibis Regulation (and its predecessors) focuses on “classic” civil of commercial cases, insolvency proceedings are subject to the (recast) Insolvency Regulation. However, the close interference between the two related areas

In India, the Corporate Insolvency Resolution Process (“CIRP”) takes place under the Insolvency and Bankruptcy Code, 2016 (“IBC”). It involves a Resolution Professional inviting resolution plans for the corporate debtor undergoing insolvency. These plans are submitted by various Resolution Applicants and the best resolution plan is approved by the Committee of Creditors and sanctioned by the National

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

At the time this guest editorial was written, the world has faced an unprecedented course of events with the outbreak of the COVID-19 (corona) virus. In a short time, this virus has reached pandemic status with cases of corona infections reported on all continents. Justified by the medical urgency, governments have prompted extraordinary measures to stop its spreading. Under the phrase “stay home,

For years, countries in the Middle East and North Africa (MENA) region have been trying to increase entrepreneurship rates and attract foreign investment, however, their bankruptcy statutes remained antiquated and punitive in nature Potential start-ups and foreign investors have been deterred from these markets due to a lack of alternative solutions to liquidation and a fear of punishment for business

Company Voluntary Arrangements (CVAs) are designed to be used in the UK to rescue a company as a going concern. They are under used in practice and have a reputation for high failure rates. This article, based upon a longer report funded by the UK insolvency profession, considers the nature of success or failure of CVAs. It considers empirical evidence to identify the weak points of CVAs in practice

Brexit has produced a lot of uncertainties in the UK, not the least of which are the future of protections that have been derived from EU social policy Directives. Arguably, the UK's membership in the EU has pushed it further into a socially liberal and protective framework that it might not have adopted had it remained outside of the EU's sphere of influence. The question now is what direction the

The European Council adopted the Preventive Restructuring Directive (2019/1023/EU) on June 20, 2019, which must be transposed by July 17, 2021, subject to a possible extension of a maximum of 1 year for countries encountering particular difficulties in the implementation. The Directive signals a paradigm shift in EU policy on insolvency from the traditional focus on cross‐border issues. The new Directive

This article examines the effectiveness of policy reformand implementation in resolving insolvency in Indone-sia. The Ease of Doing Business (EODB) in Indonesiahas significantly increased over the last 6 years, fromranking 129th in 2012 to 73rd in 2019. Among the10 EODB indicators, resolving insolvency was identi-fied to be the highest contributing indicator. In 2019,this indicator ranked 36th—far

Modern insolvency law instruments recognise the specificity of enterprise group insolvencies, premised on the existence of close operational and financial links between group members. It is widely accepted that maximisation of insolvency estate value and procedural efficiency depend on coordination of insolvency proceedings opened with respect to group entities. Such coordination is prescribed in the

This paper addresses critically the meaning and effect of the set‐off provisions in the European Insolvency Regulation. The Regulation sets out the authority of EU Member States to open insolvency proceedings and provides that, subject to exceptions, the law of the State that opens insolvency proceedings shall apply to those proceedings. Setoff is one such exception for the opening of insolvency proceedings

Given that many overindebted households have low or no assets and income, governments have increasingly tried to adapt their consumer bankruptcy regimes to the needs and capacities of these NINA (“no income, no assets”) debtors. Most notably, since the mid‐2000s, some countries from the Anglosphere have created low‐cost, means‐tested, and administrative (i.e., nonjudicial) debt relief procedures as

Since the first edition was published in 1917, Mars The Law of Insolvency in South Africa has been a classic work on insolvency law in South Africa. Since the publication of the ninth edition in 2008, there have been several developments in the law of insolvency and associated areas of law which necessitated the publication of a new edition. These include, among others, the amendment of the Insolvency

As part of his extensive research work, Anthony Lizárraga Vera‐Portocarrero, a legal practitioner specialized in financially distressed companies, insolvency law, and bankruptcy, puts in our hands the book entitled “Clawback Regime in the Peruvian Insolvency and Bankruptcy System: A Doctrinal and Case‐Law Study”, which once more shows his significant contribution to the study of these matters, especially

1 YOUNGER ACADEMICS AT THE FOREFRONT OF RESTRUCTURING AND INSOLVENCY Insolvency and restructuring law is in a boom of activity, owing in part to the introduction of the Preventive Restructuring Directive11 Directive (EU) 2019/1023 of the European Parliament and of the Council of June 202,019 on preventive restructuring frameworks, on discharge of debt and disqualifications, and on measures to increase

The United States' bankruptcy system faces a major problem: many consumers are too poor to file for bankruptcy, usually because they cannot afford the necessary attorney fees. Some consumers appear to spend months trying to save the funds to pay their attorneys, thus either delaying their bankruptcies or foregoing bankruptcy altogether when they fail to save enough money. Others file for repayment

No income, no assets (NINA) and low income, low assets (LILA) debtors are a non‐negligible part of the increasingly ‘financialized’ market economy. Falling outside the financial market or accessing it through low quality financial products, NINA/LILA debtors appear to be under prioritized by both legal and judicial regimes and public policies. Focusing on the legal and judicial dimension, and taking

A significant policy issue in personal insolvency concerns the debtor with little income and few assets who may be unable to afford bankruptcy in those jurisdictions which require payment to access the individual bankruptcy system. The challenge of addressing the situation of these debtors is one experienced both by long standing personal insolvency systems and newer system in emerging markets. This

Canada does not have a low-cost bankruptcy option for debtors with low incomes and low assets. In this article, we present empirical evidence of the need for such an option by estimating the number of debtors who might benefit from it. We then review the successful low-cost bankruptcy options in operation in New Zealand and in the United Kingdom and recommend that Canada adopt a similar system.

No abstract is available for this article.

This article examines the history of the office of Bankruptcy Registrar of the High Court of England and Wales. It is argued that the power of the registrars to act judicially grew from their authorisation to act pursuant to delegated powers introduced in 1869 and that this began a major shift in their role from being largely administrative to their current status as fully fledged (and renamed) insolvency

In recent years, there has been growing interest in whether pre‐packed bankruptcy can be a mechanism through which firms facing imminent insolvency can preserve value. Although an extensive body of literature exists on “pre‐packs,” whether such techniques really preserve value remains ambiguous. By analysing bankruptcy proceedings filed with Dutch courts in the period 2012–2018 through the lenses of

Since inheriting the mantle of Editor of the International Insolvency Review from the late Professor Ian Fletcher in 2017, I have been fortunate to assist in some of the changes that have underpinned the continuing ambition of the journal and its publishers, Wiley's, to cement that reputation. Professor Fletcher's custodianship of the journal over its first 25 issues saw it go from strength to strength

Regulation (EU) 2015/848 (Recast European Insolvency Regulation/Recast EIR) contains a set of articles dedicated to the insolvency proceedings relative to members of groups of companies. No substantial consolidation or any procedural nature is envisaged. Article 2(13) of Regulation 2015/848 clarifies that, for the purposes of the same, a “group of companies” must be understood as “a parent undertaking

This article compares reforms to directors’ liability for insolvent trading in Singapore and in Australia. The authors analyse the law in these two countries because they are important Asia-Pacific trading partners and their laws were originally largely the same – Singapore’s law on insolvent trading reflected the law in Australia from the 1960s. However, the law in the two countries has now diverged

The European Union plans on partially harmonising the extrajudicial enforcement of collateral in order to reduce the stocks of nonperforming loans. This article discusses the proposed regime and its background. After examining its impact on the national secured transactions law of Austria, Belgium, France, Germany and The Netherlands, the authors comment on the appropriateness of the proposed harmonisation

No abstract is available for this article.

Sustainability is a wide concept including environmental, economic, social/culture, and political dimensions. Currently, sustainability research is a rich scientific discipline producing a significant number of research papers. However, sustainability in the context of insolvency proceedings has attracted little research compared with, for example, how much attention corporate social responsibility