Thirteen national jurisdictions are covered in depth in this book. There are also general chapters on the global impact of merger legislation in the European Union and the United States, tax regimes, and private international law. Among the salient factors discussed in context as they arise are the following: a company's debt-to-equity ratio; the role of hedge funds; the role of private equity firms; and, currency mismatches. The authors, each an expert in his or her own country's insolvency law regime, provide precise information on the eligibility requirements, restrictions, and other provisions of the laws they discuss. They also analyze the important relevant cases in their jurisdictions. The jurisdictions covered in this book include: Argentina; Australia; Brazil; Canada; England and Wales; France; Hong Kong; India; Italy; Japan; Poland; Turkey; and, USA.

The present work examines different models and proposals on the insolvency of states and regional corporations.

With the increase in company bankruptcies directors and general managers of troubled companies have come into the sights of prosecuting authorities. It is already practically impossible in fact to draw a line between punishable behaviour and entrepreneurial errors of judgment. This applies in particular to the risks of penalties in and for causing absolute insolvency, as ascertaining this is linked with many valuation uncertainties and forecast risks. The aim of this work is to come closer to a clarification of the definition of absolute insolvency under the criminal law.

Conflicts of interest arise naturally in all walks of life, particularly in business life. As general and indeed inevitable phenomena, conflicts of interest should not be prohibited but properly managed. This book presents indepth analysis of such management in three areas of corporate governance where the conflict-of-interest problems are particularly acute: executive compensation, financial analysis, and asset management. "Conflicts of Interest" presents the results of a two-year-long research project bringing together academics and practitioners in both law and finance from Europe and the US under the auspices of the Centre for Banking and Financial Law of the University of Geneva. This book discusses the following issues: the duty of loyalty; remedies, such as disclosure, incentives, organizational measures; regulation and enforcement; and market considerations. With its intense focus on the material effects of actual conflicts of interest at the core of modern corporate governance and financial markets, this incomparable book will inform not only business people, practitioners, and academics, but also legislators, regulators, and all concerned with the far-reaching ramifications of conflict-of-interest management.

As a central provision of the substantive insolvency law, 103 of the InsO [Insolvency Statute] is of great practical importance. When an insolvency proceeding is opened, the insolvency administrator is often required to decide on the type of settlement for a number of mutual "provisional" contracts, meaning contracts not completely fulfilled by any party. This applies in particular for company insolvencies. In the past, the insolvency administrator's right of election was already a common subject matter of scholarly works. However, only the legal position within the insolvency proceeding stood at the center of these investigations. Therefore, the goal of the present work is the investigation of the legal position existing between the parties to the contract after the insolvency proceeding is cancelled either after complete final distribution or after an insolvency plan comes into effect. The starting point is the fundamentally tense relationship between the contractual law of obligations and substantive insolvency law, and the associated question regarding the effects of the opening of the proceeding on the claims for fulfillment that are still open. The author presents the problems that arise with the application of the latest BGH [German Federal Supreme Court] judicature, according to which the opening of the proceeding affects only the "enforceability" of the claims for fulfillment, and offers solution recommendations. Particularly relevant in practice are the difficulties that result from the renunciation of the "forfeiture theory" when the insolvency reorganization plans go into effect.

The insolvency law is one of the core components of the comprehensive body of legislation that ensures the confidence of the legal community in a legal system. It regulates the conditions of widespread debtor liability and at the same time defines the framework within which creditors can expect their rights to be preserved through a reorganization and recapitalization of the indebted company. The actual effect of the insolvency law does not end at a country's borders. Insolvency proceedings are structured according to the right to have universally applicable validity. Joint legislation on cross-border insolvency proceedings is now in effect in the form of intrastate legislation in almost all member states of the European Union. This shared European legislation is impacting intrastate reform processes and influencing the insolvency legislation. Furthermore, the intrastate legislation is being influenced by the UNCITRAL-Model law. Academic debate is increasingly concerned with the convergence movement that has been triggered as a result. Practical applications require legal dogmatic clarification of the increasingly complex regulations of insolvency legislation, and information on structures and problems of foreign European and extra-European insolvency laws, as well as and in particular with regard to its interaction with German laws. The DZWIR publication series is a forum of these discussions. It is being published as a series of monographic examinations of fundamental questions on German, European and international insolvency legislation. As such, this series contributes to the legal dogmatic clarification of disputes as well as to the promotion of European integration of national insolvency legislation.

Experience has shown that the complex issues raised by cross-border insolvencies cannot be adequately addressed by existing national bankruptcy law regimes. In order to deal effectively with such emerging factors as multi-jurisdictional intellectual property rights and contractual issues surrounding employment or immovable property - as well as such long-standing problem areas as choice of law and recognition of judgments - a system of international bankruptcy and insolvency law is needed. This monograph shows how such a system is ready to hand in Europe and potentially available at a global level. As an obvious step in this direction, Professor Torremans examines the EU Regulation on Insolvency Proceedings. He analyses all its provisions in detail, and sets out the solution it puts in place, partial and imperfect as it may be. He concludes that within the EU this Regulation promises to improve matters substantially, and that it bodes well to become a model for international co-operation in this area. To demonstrate the need for a coherent cross-border insolvency law regime, Professor Torremans first describes two very different national approaches, those of Belgium and the United Kingdom. He explores these two traditional approaches in detail, stressing their practical applications, and finds neither system can offer a satisfactory solution in a cross-border context. Finally, recognising that this problem does not stop at the EU's borders, Professor Torremans examines the UNCITRAL Model Law in detail to see whether it does indeed make a useful contribution.

In recent years, a number of company bankruptcies in Europe - particularly in the Netherlands - have exposed serious gaps in the securing by law of reparations due to employees. As matters stand, employees - who were dependent upon the bankruptcy not only for their income but also for their employment and social security - have little to expect in terms of payment of arrears of pay, protection against dismissal, continued employment in the event of a business transfer, or participation rights. This work opens this far-reaching and hugely important issue by comparing employee rights in bankruptcy among four major European trading partners - the Netherlands, the United Kingdom, Belgium and Germany. It is to be hoped that, armed with the substantive and procedural details that are fully laid out in these pages, company lawyers and bankruptcy lawyers throughout Europe will be enabled to bring the rights of employees in bankruptcy into a light at least as clear as that focused on other creditors. The contributors examine not only the individual fairness issue - the unequal position of the employee as weaker party in the labour market - but also the central policy issue: does an improvement of the position of employees in a bankruptcy give rise to less willingness on the part of lenders to keep the flow of money open, or greater control by lenders over the way in which borrowers run their businesses with, as a result, slower economic growth and hence a lower level of employment? The study was commissioned by the Stichting Ondersteuningsfonds Oud-Werknemers DAF (Benevolent Fund Foundation for Former DAF Employees) in Eindhoven and carried out by researchers of the Faculty of Law of theKatholieke Universitcit Brabant in Tilburg. Its provisional findings, presented at the conference on "Employee Rights in Bankruptcy" held in Tilburg on 8 December 1999, were considered and discussed from a variety of viewpoints by representatives of such relevant parties as trade unions and employers' organizations, receivers in bankruptcy, banks, public authorities, politicians and legal experts. The end result is this report, which is sure to contribute to a better understanding of the difficult issue of employee rights in bankruptcy and to stimulate discussion of remedies that are indispensable to the maintenance of a responsible society.

The fourth edition of this book has been fully updated to take account of the drastic reforms that have occurred as a result of requirements to comply with EC Directives. In addition, an increasing body of international guidelines has been issued. This new edition includes the extensive amendments to the Copyright, Designs and Patents Act 1988, the European Patent Convention, the Patent Co-operation Treaty, the Madrid Agreement, the Agreement on Trade-related aspects of Intellectual Property Rights, the WIPO Copyright Treaty and the Performances and Phonograms Treaty. Concentrating on topics of particular practical importance and interest in a stimulating and concise way, this book should be of interest to both students and practitioners and is an introduction to the subject.

In 1982 Johns-Manville, a major asbestos manufacturer, declares itself insolvent to avoid paying claims resulting from exposure to its products. A year later, Continental Airlines, one of the top ten carriers in the United States, claims a deficit when the union resists plans to cut labor costs. Later still, oil powerhouse Texaco cries broke rather than pay damages resulting from a courtroom defeat by archrival Pennzoil. Bankruptcy, once a term that sent shudders up a manager's spine, is now becoming a potent weapon in the corporate arsenal. In his timely and challenging study, Kevin Delaney explores this profound change in our legal landscape, where corporations with billions of dollars in assets use bankruptcy to achieve specific political and organizational objectives. As a consequence, bankruptcy court is rapidly becoming an arena in which crucial social issues are resolved: How and when will people dying of asbestos poisoning be compensated? Can companies unilaterally break legally negotiated labor contracts? What are the ethical and legal rules of the corporate takeover game? In probing the Chapter 11 bankruptcies of Johns-Manville, Frank Lorenzo's Continental Airlines, and Texaco, Delaney shows that more and more, an array of powerful actors--corporations, commercial creditors, auditors, bond rating agencies and investment bankers--are coming to view bankruptcy as a legitimate business strategy. In each situation, the choice of bankruptcy by these corporate giants was directly influenced by the surrounding business community. In the case of Johns-Manville, carrying appropriate insurance did not prevent its twenty insurance companies from refusing to pay claims. Thanks to shrewdplanning and cooperation from Continental's creditors, not only was the airline able to continue flying in the first week of Chapter 11, but it could also offer the lowest cross-country fare in the market. Texaco's banks nudged their client toward bankruptcy as a way to squeeze it into compliance with banking conventions it had previously bypassed. Strategic Bankruptcy uncovers the ways in which bankruptcy has become a biased political system of allocating scarce resources. Delaney's in-depth investigation of three recent bankruptcies and his searing expose of current corporate practices make this book essential reading for corporate executives, lawyers, legislators, and policymakers.

Corporate bankruptcy is a defining characteristic of the market economy. It encapsulates the fundamental conflict between capital and labour. Yet, with one or two notable exceptions, the political and social dynamics of bankruptcy law and practice have been largely overlooked by socio-legal scholars. This book remedies that neglect. It compares English and American insolvency laws to identify the underlying political forces that established corporate bankruptcy law on both sides of the Atlantic. It shows how corporate insovency regulation is the creation of the lawyers who interpret and administer it. This book will be welcomed as an important sociological study and advances our understanding of how substantive law results from conflicts among the professionals who help to create it.

Diese Festschrift ist dem GAttinger Ordinarius fA1/4r Zivil-, Handels- und Prozessrecht gewidmet.

The legal meaning of bankruptcy and insolvency law has often remained elusive, even to practitioners and scholars in the field, despite having been enshrined in Canada's Constitution since Confederation. Federal jurisdiction in this area must be measured against provincial powers over property and civil rights, among others. Debt and Federalism traces conceptions of the bankruptcy and insolvency power through four cases that form the constitutional foundation of the Canadian bankruptcy system: the 1894 Voluntary Assignments Case, Royal Bank of Canada v Larue in 1928, the 1934 Companies' Creditors Arrangement Act Reference Case, and the 1937 Farmers' Creditors Arrangement Act Reference Case. Together, they produced the bedrock for modern understandings of bankruptcy and insolvency law.

The Model Law on Recognition and Enforcement of Insolvency-Related Judgments (MLIJ) is designed to provide States with a simple, straightforward and harmonized procedure for recognition and enforcement of insolvency-related judgments and complements the UNCITRAL Model Law on Cross-Border Insolvency to further assist the conduct of cross-border insolvency proceedings.

The study is a result of a collaborative research project addressing "The Implementation of the New Insolvency Regulation - Improving Cooperation and Mutual Trust". The project was undertaken by the Max Planck Institute Luxembourg for Procedural Law, the University of Vienna and the University of Milan, and co-funded by the European Union as part of the Commission's Action Grants 2013 for Civil Justice. The focus of the study concerns specific issues of cross-border insolvencies under the recast of the Insolvency Regulation which already has been prepared by a large part of the contributing authors in the Heidelberg-Vienna-Luxembourg Report. The study is comprised of three major topics: 1.The Regulation's extended scope of application, including pre-insolvency and hybrid proceedings, the relationship between Article 1(1) of the Regulation and its Annex A, as well as the interplay between the Insolvency Regulation and the Brussels Ibis Regulation; 2.the cooperation between main and secondary insolvency proceedings, the new instruments, such as "synthetic proceedings", destined to avoid or postpone the opening of secondary proceedings, further the cooperation between administrators and courts of different proceedings as well as protocols to enhance cooperation; 3.insolvencies of groups of companies, with a particular focus on jurisdiction, COMI-migration, "group coordination proceedings" and other instruments of coordination.

In 2012, building off work first published in 2010, the Resolution Project proposed that a new Chapter 14 be added to the Bankruptcy Code, exclusively designed to deal with the reorganization or liquidation of the nation's large financial institutions. In this book, the contributors expand on their proposal to improve the prospect that our largest financial institutions-particularly with prebankruptcy planning-could be successfully reorganized or liquidated pursuant to the rule of law and, in doing so, both make resolution planning pursuant to Title I of Dodd-Frank more fruitful and make reliance on administrative proceedings pursuant to Title II of Dodd-Frank largely unnecessary.

Insolvency within multinational enterprise groups (MEGs) raises complex issues due to the foreign elements of the case and the multiplicity of debtors. The key problem is deciding to what extent and in which ways should there be 'linkage' between the entities in the course of their insolvency in order to promote insolvency goals. Historically the issue has been neglected both in national and international regimes. However, new initiatives are currently developing. In order to deal with this issue the work provides a theoretical framework, suggesting a balance between Entity-Enterprise issues (drawn from company law theory and the problem of enterprise groups) and Universality-Territoriality issues (drawn from cross-border insolvency and conflict of laws theory). This is further assisted by a taxonomy describing prototypical scenarios of MEGs and their insolvency. The theoretical framework and prototypical scenarios are the basis for critical analyses of various tools for 'linking' between different components of MEGs in the course of their insolvency and the degree to which they fit with a series of insolvency goals. Thus, the book suggests a comprehensive approach for dealing with insolvency within MEGs which can be used not only within the current cross-border insolvency frameworks (e.g., UNCITRAL Model Law, EC Regulation) but also as a definitive guideline for future reform. It argues that a global group-wide perspective for MEG insolvencies can be desirable if its application is limited to appropriate types of cases where unduly defeat of entity law and territoriality concerns can be minimized.

This volume examines the circumstances in which a shareholder can bring an action on behalf of a company (a derivative action), exploring how this remedy may be used to ensure good corporate governance, and laying out a theoretical framework and practical guidance for future development of the law. Derivative actions are an important aspect of the continuing debate about corporate governance in the UK, the US and many other jurisdictions worldwide. This book offers a conceptually inclusive approach to thinking about derivative actions by providing a detailed and clear overview, commentary, and a theoretical explanation of the law governing derivative actions in the corporate governance context. Reisberg provides a fundamental reassessment of the nature and objectives of the derivative action, and conceptualizes a new model of the derivative action mechanism. He argues that action should be taken in three areas: (1) conceptual (adoption of a new framework- the 'Functional and Focused Model' set out in the book) (2) strategic (employment of appropriate incentives and fee rules which advance the premises behind the Model) (3) maintaining doctrinal consistency (clarification of the interaction between the derivative action and other remedies available to shareholders) This book offers practical guidance on solving current problems in many jurisdictions based on case law, and on substantive legal, economic, and comparative research. It also provides a comprehensive and detailed analysis and commentary on the regime governing derivative actions under Part 11 of the Companies Act 2006 in the UK.

This supplement to the second edition of Insolvency in Private International Law covers the key developments in case law and legislation in the subject up to October 2006, and is an essential purchase for all who have already bought the main work. It includes the full text of the Cross-Border Insolvency Regulations 2006, along with commentary on the regulations. The supplement also includes the text of Council Regulation 694/2006, amending EC Regulation 1346/2000 on insolvency proceedings, and references to key developments in case law, including Eurofood IFSC Ltd, Daisytek ISA, and Cambridge Gas Transport Corp v Official Committe of Unsecured Creditors of Navigator Holdings plc. The commentary on case developments links back to the relevant paragraph in the main work. The main work deals with the problems generated by those cases of insolvency (either of an individual or of a company) where the presence of contacts with more than one system of law brings into operation the principles and methods of private international law (also known as conflict of laws). Part I of the main work is mainly devoted to an examination of the body of rules and practice that has evolved in England during the course of the past two-and-a-half centuries, and surveys the current state of the law derived from a blend of statutory and case authorities. Contrasting approaches under a selection of foreign systems - principally Australia, Canada, France and the USA - are examined by way of comparison. There are up to date accounts of the circumstances under which insolvency proceedings can be opened in respect of debtors which are not primarily based in England, and of the grounds on which English courts will recognise foreign insolvency proceedings and give assistance to the foreign representative of the debtor's estate. Part II of the main work explores the progress towards the creation of international arrangements to co-ordinate and rationalise the conduct of insolvency proceedings which have cross-border features, particularly where the debtor is capable of being subjected to concurrent proceedings in two or more jurisdictions. Central to the developments described in detail in this Part are the EC Regulation on Insolvency Proceedings, in force throughout the UK since May 2002, and the UNCITRAL Model Law on Cross-Border Insolvency, which was due for enactment in the UK. The main work of the second edition and the supplement are also available as a set (ISBN 9780199214952: GBP160)

This exciting volume draws together the views of some of the most eminent figures in corporate law and finance regarding the law on fixed and floating charges. The focus for the book is the litigation in the case of Spectrum Plus, which culminated in a House of Lords judgment in June 2005 ([2005] UKHL 41). This decision has important commercial implications, not only for the parties in the case but also for the business community at large, including banks and other lenders, and practitioners in corporate finance and insolvency. The litigation also raises important juristic questions regarding the fixed/floating charge divide such as the theoretical basis for that divide, how the divide is determined, why it exists at all and whether it ought to be maintained as a coherent doctrine and a beneficial policy. The decision also has important ramifications in both security law and insolvency law and it provides a challenge to some of our most basic conceptions of freedom of contract and the assignability of rights and assets in law and equity. These issues, amongst others, are explored by the contributors to this book. The contributors include Gabriel Moss, who was one of the QCs involved in the Spectrum litigation, Sir Roy Goode, Michael Bridge, John Armour, Robert Stevens, Sarah Worthington, Julian Franks and Oren Sussman, Jenny Payne and Louise Gullifer, Philip Wood, Joshua Getzler, Look Chan Ho, and Nicholas Frome and Kate Gibbons.