Cross-Border Insolvency Practice

This book approaches cross-border insolvency from the perspective of conflict of laws with a view to strengthening the understanding and practice of cross-border insolvency. The book analyses the whole corpus of cross-border insolvency regimes from three conflicts perspectives, namely:

i. jurisdiction to commence insolvency proceedings;
ii. recognition and enforcement of foreign insolvency proceedings;
iii. choice of law.

This approach to cross-border insolvency allows the principles of cross border
insolvency to be compared and contrasted across the whole
corpus.

It thereby teases out the inconsistencies between the different regimes dealing with essentially the same cross-border issues. Approaching cross-border insolvency in this manner, so far not attempted by any other textbook, should help everyone interested in this area of the law appreciate that cross-border insolvency problems often find their solutions in the proper understanding of insolvency policy and principles.

Cross-Border Insolvency features:

• EU Insolvency Regulation
• Brussels I Regulation
• UNCITRAL Model Law on Cross- Border Insolvency
• Credit Institutions (Reorganisation and Winding Up)
• Regulations 2004
• Insurers (Reorganisation and Winding Up)
• Regulations 2004
• Insolvency Act 1986
• Foreign Judgments (Reciprocal Enforcement) Act 1933
• Administration of Justice Act 1920
• Common law
• Comparative analysis

Juridiction

This looks at the jurisdiction of the English court to commence insolvency proceedings:

• Liquidation (primary and ancillary)
• Administration
• Company voluntary arrangement
• Scheme of arrangement

All the applicable cross-border regimes have been considered to not only show what the law is, but also how to evaluate the different rules.

Recognition and enforcement

This deals with the recognition and enforcement by the English court of:

• Foreign liquidation
• Foreign reorganisation proceedings
• Foreign receivership
• Foreign insolvency judgments, e.g. a foreign judgment ordering the defendant to return property on the basis of violation of foreign fraudulent conveyance law

All the applicable cross-border regimes have been covered in order to facilitate a comparative and evaluative analysis to the reader.

Enforcement relied and choice of law

This covers reliefs that may be obtained from the English court following the recognition of foreign insolvency proceedings. Choice of law issues will be considered fully. As this area of the law is most undeveloped, this part is organised according to the typical relief sought in cross-border cases, including:

• Discharge of debt
• Set-off
• Avoidance of antecedent transactions

All the cross-border regimes have been compared and contrasted in order to state the current position and to offer recommendations going forward.

Policy considerations

This covers insolvency, policy considerations which have a direct impact on cross-border rules.