An Introduction to Corporate Insolvency Law and Reforms in Australia

2019 ◽  
pp. 107-131
Author(s):  
Amit Kumar Kashyap ◽  
Urvashi Jaswani ◽  
Anchit Bhandari ◽  
Yashowardhan S. N. V. Dixit
Keyword(s):  
Australian Government ◽  
Insolvency Law ◽  
Cross Border ◽  
Basic Framework ◽  
Corporate Insolvency ◽  
Model Law ◽  
Insolvency Proceedings ◽  
Legal Infrastructure

The Corporations Act of 2001 regulated the probable insolvency proceedings of all companies incorporated in Australia and companies incorporated or possessing separate legal. For personal insolvency, a specific legislation called Bankruptcy Act is there, but the basic framework of corporate insolvency law has been there since the inception of Corporations Act 2001 enactment, which includes all the aspects of company formation, management, governance, and dissolution. The authors have highlighted recent reforms; however, the main concentration of this chapter is on the legal infrastructure of corporate insolvency law at present as the reforms are not yet in force. The chapter also puts forth the problems faced by corporate debtor and creditors in the proceedings of insolvency resolution and has also expressed the scenario of cross-border insolvency in Australia in light of UNICTRAL Model law of cross-border insolvency which has been adopted by the Australian government in 2008.

scholarly journals The Belt and Road Initiative, China’s Cross-Border Insolvency Law, and the UNCITRAL Model Law on Cross-Border Insolvency

2020 ◽  
Vol 8 (1) ◽  
pp. 116-142
Author(s):  
Meng Seng Wee
Keyword(s):  
United Nations ◽  
Belt And Road Initiative ◽  
Insolvency Law ◽  
Cross Border ◽  
Self Interest ◽  
Belt And Road ◽  
Model Law ◽  
Insolvency Proceedings ◽  
Domestic Law ◽  
The Belt And Road

Abstract By examining the special features of cross-border insolvency affecting the Belt and Road Initiative (BRI), this article explains that it is crucial for China to ensure that its cross-border insolvency law is fit for the purposes of the BRI. The current law is unsatisfactory, as may be seen in Hanjin Shipping’s decision not to seek recognition of its Korean restructuring proceeding in China. China wants to cooperate more in cross-border insolvency, but it is concerned that recognizing foreign insolvency proceedings will prejudice China’s interests. This article explains that the logic and limits of the United Nations Commission on International Trade Law’s Model Law on Cross-Border Insolvency is enlightened self-interest, which leads to recognition being very limited and distinguished from relief and relief being based on domestic law. Thus, it argues that the adoption of the Model Law will not prejudice China’s interests.

The Framework of Corporate Insolvency Law

2017 ◽  
Author(s):  
Hamish Anderson
Keyword(s):  
Critical Examination ◽  
Present Position ◽  
Insolvency Law ◽  
Historical Perspectives ◽  
Cross Border ◽  
Rational Explanation ◽  
Points Of View ◽  
Corporate Insolvency ◽  
Definition Of ◽  
Insolvency Proceedings

This book provides a critical examination of modern English corporate insolvency law, in particular the procedures under the Insolvency Act 1986, from both conceptual and functional points of view. It focuses throughout on identifying a rational explanation for the form that the rules and institutions of the modern law take or, where there is no such rational explanation, the history which has resulted in the present position. A central theme of the book is that the nature and fundamental purpose of insolvency proceedings themselves dictate many of the features of English insolvency proceedings. For example, collective execution on behalf of creditors necessitates definition of the insolvent estate and the provision of rules concerning provable debts and transaction avoidance. Many key features of the insolvency procedures are therefore essentially matters of practicality rather than principle, albeit practicalities applied justly and fairly. The book covers the nature and purpose of insolvency law; the procedures; the administration, supervision and regulation of insolvency proceedings; the insolvent estate and transaction avoidance; investigation and wrongdoing by directors; phoenixism and pre-packing; distribution of the insolvent estate; and, lastly, cross-border insolvency. It examines the various principles of insolvency law in the context of practice, drawing upon historical perspectives where appropriate. By explaining how the law takes the form that it does, the book promotes an understanding of the present law and institutions as a whole, and shows how this understanding might inform future developments.

scholarly journals The Characterization of Pre-insolvency Proceedings in Private International Law

2020 ◽  
Vol 21 (4) ◽  
pp. 855-894 ◽  
Author(s):  
Irit Mevorach ◽  
Adrian Walters
Keyword(s):  
International Law ◽  
Contract Law ◽  
Private International Law ◽  
Insolvency Law ◽  
Private Ordering ◽  
Cross Border ◽  
Unique System ◽  
Financial Restructuring ◽  
Insolvency Proceedings

AbstractThe decade since the financial crisis has witnessed a proliferation of various ‘light touch’ financial restructuring techniques in the form of so-called pre-insolvency proceedings. These proceedings inhabit a space on the spectrum of insolvency and restructuring law, somewhere between a pure contractual workout, the domain of contract law, and a formal insolvency or rehabilitation proceeding, the domain of insolvency law. While, to date, international insolvency instruments have tended to define insolvency proceedings quite expansively, discussion of the cross-border implications of pre-insolvency proceedings has barely begun. The question is whether pre-insolvency proceedings should qualify as proceedings related to insolvency for the purpose of private international law characterization. The risk is over-inclusivity of cross-border insolvency law, which, where it is based on universality and unity, might defeat contractual expectations. This article argues, however, that we should be slow to exclude pre-insolvency proceedings from cross-border insolvency law: these proceedings are initiated in the zone of insolvency, their effectiveness depends on a statutory mandate and not purely on private ordering, they interact and intersect with formal proceedings, and can benefit from the unique system developed by cross-border insolvency law. We suggest, though, that modified universalism (the leading norm of cross-border insolvency) and international insolvency instruments, should, and are able to, adjust to the peculiarities of pre-insolvency proceedings to address concerns about inclusivity and accommodate pre-insolvency proceedings adequately.

Der Arrestvollzug in Seeschiffe während eines Insolvenzverfahrens

2019 ◽  
Author(s):  
Johannes Otto
Keyword(s):  
Unanimous Opinion ◽  
Insolvency Law ◽  
Effective Protection ◽  
Protective Mechanisms ◽  
Cross Border ◽  
Legal Situation ◽  
Starting Point ◽  
Detailed Interpretation ◽  
Definition Of ◽  
Insolvency Proceedings

Despite the economic relevance of insolvency cases with maritime implications, there is a lack of research studies that examine the associated problems in this respect. In particular, the arresting of vessels counteracts the objectives of insolvency proceedings. This comparative treatise offers scientific scrutiny of this topic and proposes practice-oriented solutions. It examines the protective mechanisms provided by the German and English insolvency laws and measures them according to their cross-border effects. In Germany, effective protection on the basis of the current legal situation is only achievable by classifying registered vessels as movable property. This contrasts with the unanimous opinion to date. This study’s dogmatic starting point is a detailed interpretation of the legal definition of immovable property under insolvency law in § 49 of InsO (Germany’s insolvency code).

scholarly journals THE HARMONIZATION OF THE AVOIDANCE RULES IN EUROPEAN UNION INSOLVENCIES

2016 ◽  
Vol 66 (1) ◽  
pp. 79-105 ◽  
Author(s):  
Andrew Keay
Keyword(s):  
European Union ◽  
Insolvency Law ◽  
Member States ◽  
European Regulation ◽  
Legal Proceedings ◽  
Eu Member States ◽  
Cross Border ◽  
Insolvency Proceedings ◽  
The Eu

AbstractCross-border transactions and resultant legal proceedings often cause problems. One major problem is knowing which law should govern the transaction and any legal proceedings. Cross-border insolvencies in the EU are subject to the European Regulation on Insolvency Proceedings (EIR) but this legislation does not determine which substantive insolvency law rules apply in a given insolvency. There are many differences in the insolvency rules applicable in the various EU Member States and this has caused concern in relation to the avoidance of transactions entered into by an insolvent prior to the opening of insolvency proceedings. In light of this, the paper examines options to address divergence between national avoidance rules. One option, harmonization, is analysed as well as its possible benefits and drawbacks.

Cross-border Insolvency

2017 ◽  
Author(s):  
Hamish Anderson
Keyword(s):  
International Law ◽  
Private International Law ◽  
Insolvency Law ◽  
Choice Of Law ◽  
Cross Border ◽  
General Law ◽  
Insolvency Proceedings

In the practice of insolvency law, the usual challenge is to work out the answer to a problem as a matter of general law and then to factor in the consequences of one or more of the parties being insolvent. In cross-border insolvency cases, this exercise can be made considerably more complicated by choice of law issues. Ultimately, cross-border insolvency questions are all questions of private international law which are determined in accordance with specific rules where applicable or otherwise in accordance with general principles. The aims are to recognize properly grounded foreign insolvency proceedings, to act in aid of them where appropriate, to ensure that English proceedings will achieve extra-territorial recognition where necessary, and thereby to achieve fairness for all creditors everywhere by avoiding conflicts and confusions between jurisdictions.

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.

28. Insolvency

2017 ◽  
Author(s):  
MA Clarke ◽  
RJA Hooley ◽  
RJC Munday ◽  
LS Sealy ◽  
AM Tettenborn ◽  
...  
Keyword(s):  
Historical Background ◽  
Insolvency Law ◽  
Cross Border ◽  
Corporate Insolvency ◽  
The Cross ◽  
International Airlines

This chapter deals with insolvency and the principles of insolvency law. It begins with a brief historical background on the evolution of insolvency law, from the Bankruptcy Acts of 1883 and 1914 to the Insolvency Act 1986 and its amended versions, along with the Cross-Border Insolvency Regulations 2006. It then considers the basic objectives of insolvency law as it relates to the bankruptcy of individuals and to corporate insolvency. In particular, it highlights the importance of the pari passu principle, as illustrated by the case British Eagle International Airlines Ltd v Cie Nationale Air France (1975). The chapter goes on to discuss the various definitions of insolvency before concluding with an overview of insolvency procedures for both individual insolvency and corporate insolvency.

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