scholarly journals The Role of Insolvency Tests: Implications for Indian Insolvency Law

2021 ◽  
Author(s):  
Ram Mohan M. P.
Keyword(s):  
Insolvency Law

Complementary Tools and Incentives

2018 ◽  
Author(s):  
Mokal et
Keyword(s):  
Modular Approach ◽  
Insolvency Law ◽  
Financial Situation ◽  
Legal Advice ◽  
Effective Use

This chapter discusses the complementary tools and incentives that can be adopted by jurisdictions to ensure the proper and effective use of the Modular Approach and to give due regard to the position and role of the various types of stakeholders involved in a MSME insolvency process. It specifically focuses on the roles and obligations of the MSME entrepreneur, both at times approaching insolvency and during the MSME insolvency process. Entrepreneurs do not always possess the education and skills to monitor the financial situation of their business and to react accordingly. With regard to the MSME framework, they would usually not be capable of designing a proper continuation plan. They might not even be aware that there is a chance to turn their business around by using mechanisms under insolvency law. In all these areas, education is a useful remedy. Jurisdictions should establish a method for providing affordable educational counselling and legal advice.

scholarly journals Towards an International Paradigm of Personal Insolvency Law? A Critical View

2017 ◽  
Vol 17 (1) ◽  
pp. 15 ◽  
Author(s):  
Iain Ramsay
Keyword(s):  
Final Section ◽  
Empirical Studies ◽  
Public Support ◽  
Safety Net ◽  
Policy Preference ◽  
Central Feature ◽  
Insolvency Law ◽  
Global Spread ◽  
Deserving Poor

This article analyses three issues related to the global spread of personal insolvency laws. First, it outlines the emergence of an international paradigm on personal insolvency law and its central feature of a policy preference for partial repayment alternatives as the norm with residual immediate relief reserved for the deserving poor debtor. Second, it examines critically this paradigm in the light of existing empirical studies of the extent to which personal insolvency law achieves economic and social objectives associated with the fresh start such as financial inclusion. The mixed empirical findings on the success of personal insolvency law in achieving these objectives, particularly for individuals subject to instability of employment or poverty raises further questions about the role of personal insolvency law as a modestly progressive safety net for overindebtedness. The final section of the article considers therefore recent radical theories of consumer credit in contemporary capitalism which conceptualise credit as exploitative and personal insolvency law as a disciplinary and legitimating institution which individualises default and may neutralise collective responses to debt and its wider causes such as limited public support or provision. The article concludes by outlining how these radical insights might contribute to future socio-legal research on personal insolvency law.

Part III Europe, 13 The Valuation of LBT Notes: An Application of Dutch Insolvency Law

2017 ◽  
Author(s):  
Faber Dennis ◽  
Vermunt Niels ◽  
Davies Gareth ◽  
Helmantel Mark
Keyword(s):  
The Netherlands ◽  
Legal Reform ◽  
Economic Aspects ◽  
Insolvency Law ◽  
Lehman Brothers ◽  
Bankruptcy Code

This chapter explores the main issues faced by the Lehman Brothers Treasury Co BV in the Netherlands (LBT) bankruptcy trustees in the valuation of (claims arising from) Notes and Certificates (LBT Notes). Legal and economic aspects of the definitive valuation principles adopted by LBT’s bankruptcy trustees are explained in detail. Although Dutch law applied to the valuation of insolvency claims, some references to foreign valuation regimes is made to illustrate alternative options for the valuation of certain types of insolvency claims or the need for statutory reform. The chapter first provides an overview of the procedure applied by the LBT bankruptcy trustees to establish valuation principles and the role of certain main stakeholders in this process. This chapter also looks at legal and economic aspects of the general valuation regime under the Dutch Bankruptcy Code (Faillissementswet) vis-à-vis the valuation of insolvency claims in the LBT proceedings and concludes with some observations on future legal reform.

Introduction

2016 ◽  
Author(s):  
Reinhard Bork ◽  
Renato Mangano
Keyword(s):  
European Union ◽  
The Other ◽  
Soft Law ◽  
Judicial Activism ◽  
The European Union ◽  
Insolvency Law ◽  
Cross Border ◽  
Model Law ◽  
Concise Description

This chapter is an introduction to the issues involved in cross-border insolvency cases and their regulation as covered by the EIR, which recast the OR. It also provides a view-from-the-cathedral of EU Regulation 2015/848; a concise description of its history, aims, and principles; as well as a list of the other relevant sources of law, including those of soft law such as the UNCITRAL Model Law and the European Communication and Cooperation Guidelines for Cross-border Insolvency (the so-called ‘CoCo Guidelines’). Finally, the role of the Court of Justice of the European Union (CJEU) for the interpretation of European insolvency law and its judicial activism are analysed.

scholarly journals The Authentic Consent Model: contractarianism, Creditors’ Bargain, and corporate liquidation

Legal Studies ◽  
2001 ◽  
Vol 21 (3) ◽  
pp. 400-443 ◽  
Author(s):  
Rizwaan Jameel Mokal
Keyword(s):  
Cognitive Abilities ◽  
Alternative Model ◽  
Legal Status ◽  
Selection Process ◽  
Personal Attributes ◽  
Equal Weight ◽  
Insolvency Law ◽  
Starting Point ◽  
Self Interest

The first part of this paper asks if the Creditors' Bargain Model, long employed by insolvency scholars as the starting point for many an analysis, can explain or justify even the most distinctive and fundamental feature of insolvency law. After examining the defining features of the model's construction, the role of self-interest and consent in it, and its ex ante position, it is concluded that the Bargain model can neither explain nor legitimate the coercive collective liquidation regime. The second part of the paper develops an alternative model to analyse and justify insolvency law. The starting premise is that all (but only) those affected by issues peculiarly governed by insolvency law are to be given a choice in selecting the principles which would determine their rights and obligations. Once these parties have been identified, they are to be given equal weight in the selection process, since their legal status (whether they are employees, secured or unsecured creditors, etc), wealth, cognitive abilities, and bargaining strength are all morally irrelevant in framing rules of justice. This part of the paper introduces the notion of a constructive attribute, characteristics this society accepts its citizens should have in their role as legislators. So all parties affected by insolvency issues are regarded as free, equal, and reasonable. The model sketched out in this part of the article requires all principles to be selected from its choice position. Here, all the parties are deprived of any knowledge of personal attributes, and must reason rationally. It is shown that parties in the choice position would in fact choose the principles laying down the automatic stay on unsecured claims. The paper concludes with the demonstration that because of the construction of the choice position and the constructive attributes of the parties bargaining in it, the principles chosen are fair and just, and chosen in exercise of the parties' autonomy. As it happens, they are also efficient.

The Debiasing Role of the Cross-Border Insolvency System

2018 ◽  
Author(s):  
Irit Mevorach
Keyword(s):  
International Law ◽  
Law And Economics ◽  
Optimal Solutions ◽  
Insolvency Law ◽  
Cross Border ◽  
System P ◽  
The Cross ◽  
Decision Making Biases ◽  
Do So

This chapter explores what the reasons for deviating from modified universalism in practice may be. To do so, it draws on behavioural international law and economics. The chapter argues that certain decision-making biases may play a role in cross-border insolvency and can explain both negative inclinations and instances of lack of cooperation, as well as the relative success of modified universalism. The key argument here is that instead of yielding to territorial inclinations, cross-border insolvency law has a debiasing role to play. It should attempt to align choices with optimal solutions, overcoming biases, and should also close gaps in the cross-border insolvency system in line with modified universalism.

The Role of Consent in European Cross-Border Insolvency Proceedings: The Unilateral Undertaking under Article 36 EIRR

Global Jurist ◽  
2021 ◽  
Vol 0 (0) ◽  
Author(s):  
Marcello Gaboardi
Keyword(s):  
The European Union ◽  
Insolvency Law ◽  
Public And Private ◽  
European Regulation ◽  
Cross Border ◽  
Private Interests ◽  
The Individual ◽  
Insolvency Proceedings ◽  
The Impact

Abstract Properly balancing between public and private interests is one of the most significant and complex challenges presented by modern insolvency law. The European Union insolvency law has recently embraced that challenge, by reinforcing the role that private actors, such as creditors and stakeholders, are called upon to play within the context of insolvency proceedings. That approach to insolvency has gradually reduced the impact of public actors, such as judges and public officers, in managing the debtor’s financial difficulties. The individual consent seems to be the new way of facing the debtor’s insolvency. First, this Article examines the role of individual consent in insolvency proceedings in terms of economic efficiency. It focuses on the tendency to favor agreements between the debtor and creditors or the insolvency practitioner in several European legal systems when they increase the likelihood to produce efficient results for both the parties. The second part of this Article focuses on the European Regulation on cross-border insolvency proceedings no. 848/2015. I offer some critical thoughts about the unilateral undertaking under article 36 of the European Regulation. It represents a relevant means of managing the debtor’s cross-border insolvency through an agreement between the insolvency practitioner in the main insolvency proceedings and local creditors in order to avoid the opening of inefficient secondary proceedings.

Sign in / Sign up

Export Citation Format

Share Document