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This comprehensive book provides a clear analysis of the European
Restructuring Directive, which aims to improve national frameworks
governing business restructuring and insolvency as well as to
provide debt relief for individuals. Gerard McCormack explores the
key aspects of the Directive including the moratorium on litigation
and enforcement claims against the financially-troubled business,
the provision for new financing, the division of creditors into
classes, the introduction of a restructuring plan and the rules for
approval of the plan by a court or administrative authority. Key
features include: a unique contextualisation of the Directive,
situating it against the backdrop of earlier European initiatives
identification of important parallels with the UK scheme of
arrangement and the new UK restructuring plan procedure embodied in
the Corporate Insolvency and Governance Act 2020 a comparison of
the Directive with Chapter 11 of the US Bankruptcy Code, the United
Nations Commission on International Trade Law legislative guide on
insolvency, and the World Bank's Insolvency and Creditor Rights and
Doing Business projects. This important new book provides a
detailed and practical analysis of the Directive and the
implications for its transposition into national laws, making it an
essential work for insolvency lawyers and practitioners, as well as
EU policy makers. It will also be critical reading for academics
and students of law, particularly those interested in commercial,
insolvency, corporate and European law.
This comprehensive book provides a clear analysis of the main
features of the European Insolvency Regulation 2015/848, within the
context of previous EU initiatives, as well as addressing the
contrasting objectives of universalism and territorialism which
underpin cross border insolvency law. It measures the EU
regulations against the UNCITRAL Model Law on Cross Border
Insolvency and compares this with how the Model Law has been
implemented elsewhere, such as in the US and the UK. Taking an
accessible approach, Gerard McCormack examines key aspects of the
regulations such as the opening of main and secondary insolvency
proceedings, as well as applicable law and special rules in respect
of security rights, rights in rem, transactional avoidance and
set-off rights. Chapters also cover recognition of the opening of
insolvency proceedings and of insolvency and related judgements,
interactions between mean and secondary proceedings, the role of
insolvency practitioners and courts, and the treatment of
creditors. EU Insolvency Law will be critical reading for lawyers
working in insolvency law, as well as other insolvency
practitioners such as accountants. It will also be of interest to
academics and students in the field, as well as policy makers in
the EU and elsewhere, including national officials.
Critically analyzing the substantive law of insolvency in the EU
countries as a whole, this book carries out horizontal
cross-cutting analysis of the data gathered from a study of
national insolvency laws. It selects particular areas for detailed
discussion and considers the pros and cons of particular
legislative solutions. Using the US and Norway as comparator
countries, the expert authors identify areas where disparities in
national laws produce problems that have impacts outside national
boundaries. They analyse these against key policy goals including;
improving economic performance throughout the EU, Promoting a more
competitive business environment, efficient asset allocation and
building more stable and sustainable human capital in terms of
support for entrepreneuers and responses to consumer
overindebtedness. The book also considers possible reform and
harmonisation measures situated against the wider contextual
background of the Capital Markets Union and the Europe 2020 agenda
of promoting jobs and growth. Discerning and practical, European
Insolvency Law will appeal to academics in both insolvency and
finance as well as Insolvency practitioners and lawyers. Its reform
suggestions will be of interest to EU Member States' government
departments as well as providing a useful reference for Consumer
associations and Debt charities.
'This is a very timely book that addresses an important subject,
namely, attempts to harmonise the law governing secured
transactions. The focus is on UNCITRAL and its Legislative Guide on
Secured Transactions. Professor McCormack has written a provocative
book that challenges existing orthodoxy. It is a stimulus for
critical thinking and is essential reading for those interested in
the subject. It also provides an informed account of the workings
of UNCITRAL, contains much valuable material on harmonisation and
uniformity, and displays a thorough grounding in the theoretical
literature.' -Michael Bridge, London School of Economics,
UK'Professor McCormack has taken the challenge to write a truly
original book about secured transactions, which is rather good news
when so many publications seem to rehash the same ideas. He is not
afraid to tackle questions usually ignored by lawyers, such as the
political aspects of harmonisation of law. This should challenge
all involved to seriously re-examine the premises on the basis of
which they work.' - Frederique Dahan, European Bank for
Reconstruction and Development This is a discerning analysis of
international harmonization efforts for secured credit law and
examines the role of globalization and finance capital in shaping
such efforts. Gerard McCormack reveals how an 'efficient' law is
often seen to increase the availability, and lower the cost, of
credit, thereby contributing to international development. He
considers whether the most comprehensive international standard the
United Nations Commission on International Trade Law (UNCITRAL)
Legislative Guide (2008) is actually suitable for adoption at the
national level. In particular, he examines the hypothesis that
American law and lawyers have shaped the content of the guide to
the extent that it is not suitable for translation into other laws.
This book will be of great interest to practitioners, policy makers
and academics, as well as students, particularly postgraduate
students, of law and business throughout the world. Contents:
Preface 1. Introduction 2. The Case for Harmonising and Modernising
the Law of International Trade 3. Harmonising and Modernising
Secured Transactions Law 4. National Models and Replication Across
International Frontiers Article 9 of the American Uniform
Commercial Law and the English Common Law 5. International
Harmonisation Efforts Before the UNCITRAL Legislative Guide 6. The
UNCITRAL Secured Transactions Guide 7. The Insolvency Legislative
Guide 8. Conclusion Index
This book offers an unprecedented and detailed comparative critique
of Anglo-American corporate bankruptcy law. It challenges the
standard characterisation that US law in the sphere of corporate
bankruptcy is 'pro-debtor' and UK law is 'pro-creditor', and
suggests that the traditional thesis is, at best, a potentially
misleading over-simplification. Gerard McCormack offers the
conclusion that there is functional convergence in practice, while
acknowledging that corporate rescue, as distinct from business
rescue, still plays a larger role in the US. The focus is on
corporate restructurings with in-depth scrutiny of Chapter 11 of
the US Bankruptcy Code and the UK Enterprise Act, and offers other
comparative oversights. Integrating theoretical and practical
insights, this book will be of great interest to academics and
practitioners, and also to policymakers in the DTI, Insolvency
Service and regulatory bodies.
Under English law it is possible to secure credit on almost any asset, but the law is widely considered to be unsatisfactory. Gerard McCormack examines English law and highlights its weaknesses. He uses Article 9 of the American Uniform Commercial Code as a reference point for reform. This Article has successfully serviced the world's largest economy for over 40 years and is increasingly used as the basis for legislation by Commonwealth jurisdictions--including Canada and New Zealand.
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