International Insolvency Review

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Latest documents

• Keay's insolvency: Personal and corporate law and practice (11th edition). By Michael Murray, Jason Harris, Sydney: Thomson Reuters. 2022. pp. 1052. 181 AUD. ISBN: 978‐2‐4743‐2539‐4
• Corporate finance for lawyers (1st edition) By Rolef de Weijs, Joost de Vries, Aart Jonkers, Cheltenham: Edward Elgar. 2023. pp. viii and 300. £120. ISBN: 978‐2‐03530‐202‐4
• Guest editorial: Insolvency‐related judgments and war‐related claims—Recent court practice in Ukraine
• The interpretation and value of corporate rescue (1st edition). By John Wood, Cheltenham: Edward Elgar. 2022. pp. 252. £90. ISBN: 978‐1‐83910‐139‐7
• Debt restructurings, debt grifting and the limits of contractualism

  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 bankruptcy discharge without going through the formal bankruptcy process. This article acknowledges some of these criticisms. It also suggests that, if third‐party releases become more widespread in the United Kingdom, this is likely to militate against the success of the United Kingdom as an international corporate restructuring venue. This is particularly the case if the underlying debt is disputed or gives rise to social or political controversy. The article is divided into five parts. After the first introductory part, the second part will examine how debts are restructured in the large corporate context in the United Kingdom and how third‐party releases are important for this endeavour. The third part will examine the equivalent position in the United States. The fourth part explores how the restructuring solutions currently on the table push up against the limits of contractually derived solutions. The final part concludes.

• INSOL Europe Yearbook 2022: Restructuring and insolvency tools in times of crisis (1st edition). INSOL Europe, Nottingham: INSOL Europe. 2022. pp. xiv and 318. Free to members. ISBN: 978‐2‐4743‐2539‐4
• Executory contracts in insolvency law: A global guide (2nd edition). By Jason Chuah, Eugenio Vaccari, Cheltenham: Edward Elgar. 2023. pp. 672. £220. ISBN: 978‐1‐80392‐341‐3
• Is insolvency stigmatised?

  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 jurisdictions. The literature review reveals a prominent stigma narrative in policy and legal texts, whereas the interview data reveal only moderate levels of stigma. Rather, they indicate that a lack of knowledge and understanding of insolvency (concept, law and procedures) may be a more powerful factor in explaining why corporate directors do not file for rescue procedures.

• Bresco v Lonsdale [2020] UKSC 25 [case comment]
• Crypto custodians in financial distress

  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 firms and the recovery and resolution of credit institutions, investment firms and other firms may be relevant (SRMR, BRRD, MiFID II, CRR, MiCAR etc). On the other hand, crypto custodians could be coherently located in the system of European insolvency law. However, the EIR Recast contains an exclusion for certain companies in the financial sector. Having now seen major crypto custodians in financial distress, legal scholars must answer the question of whether one of the legal frameworks is applicable to crypto custodians or whether the European legislature must extend the scope of one of the regimes to include crypto custodians. The study will show that the business model of pure crypto custodians holding crypto currencies in custody is not covered by major European regulations and directives concerning the financial sector but can be covered by the EIR Recast through a narrow interpretation of its scope exclusion. Taking the European legislator's perspective, the paper demonstrates that neither the CRR, SRMR, nor BRRD will lead to coherent results with respect to crypto custodians in financial distress but instead, though unintentional, the application of the EIR Recast. Concerning crypto custodians, the EIR Recast, therefore, seems to be the more suitable regime.

Featured documents

• The priorities dilemma in the EU preventive restructuring directive: Absolute or relative priority rule?

  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...

• The normative and Jural meanings of the anti‐deprivation principle vis‐à‐vis freedom of contract

  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...

• The Shifting of Directors' Duties in the Vicinity of Insolvency

  Directors are obviously critical to the management of companies, and perhaps even more so when a company is in financial difficulties. This paper examines the position of directors when their company is in the vicinity of insolvency. It provides an analytical exposition of the law that exists in...

• An empirical snapshot of English corporate insolvencies

  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...

• Crypto‐claimants and bitcoin bankruptcy: Challenges for recognition and realization
• Zombie companies in China in the COVID‐19 era

  COVID‐19 poses novel sources of uncertainty and risk to companies, but it also offers many opportunities. In the COVID‐19 era, unprecedented government and central bank interventions to tackle the economic crisis precipitated by the pandemic have reinvigorated the debate on the threat of a...

• Defining groups of companies under the European Insolvency Regulation (recast): On the scope of EU group insolvency law

  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 ...

• Implementing an insolvency framework for micro and small firms

  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...

• The European Union preventive restructuring framework: A hole in one?

  While traditionally (Continental) Europe has not been known for an in particular debtor‐ or restructuring‐friendly insolvency practice, in recent decades, important reforms were implemented that would foster restructurings in Europe. In this article, we comparatively look a the status quo of...

• Paradigm shift from a liquidation culture to a corporate rescue culture in Malaysia: A legal review

  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...