Current Developments in International and Comparative Corporate Insolvency Law

Transcription

1 Current Developments in International and Comparative Corporate Insolvency Law Edited by Jacob S. Ziegel, LL D (Lond.), Professor of Law Emeritus, University of Toronto and Member of Lincoln's Inn and the Ontario Bar with the assistance of Susan I. Cantlie, B.Sc, LL B, LL M (Toronto), Member of the Alberta Bar CLARENDON PRESS OXFORD 1994

2 Contents List of Contributors Introduction Table of Cases Table of Legislation Table of Conventions and Treaties xvii xxi xxix xlv lvi PART A: COMPARATIVE ASPECTS Section I: Where Are We Now and Where Are We Going? 1. An Overview of Recent Developments and Future Prospects in the United Kingdom, Nick Segal 5 1. Introduction 5 2. English Insolvency Law Reform 6 3. Intellectual Background 7 4. Workouts 8 5. Current Concerns Philosophies of Business Bankruptcy Law: An International Overview, Axel Flessner Introduction: Why Bankruptcy Law Philosophy? Development and Present State of the Law Basic Attitudes and Current Debates Comments An Overview of Recent Developments and Future Prospects in the United States, Lawrence P. King An Overview of Recent Developments and Future Prospects in Australia (With Some Reference to New Zealand and Asia), Ron Harmer Introduction Some Reminders of the Past The Model Details of the Voluntary Administration Regime Comparison With Other Jurisdictions Other Important Areas of Reform in Australia Trans-Tasman Issues 54

3 x Contents 8. Insolvency Law in Asia 56 Section II: The Challenges of Reorganizing Insolvent Corporations 5. Administration: Part II of the Insolvency Act, Dan Prentice, Fidelis Oditah, and Nick Segal 63 Introduction 63 Part A: 1. The Background to Part II of the Insolvency Act Part B: Administration Introduction The Obtaining of an Administration Order: The Preliminary Steps The Effect of Making an Order 83 Part C: Conclusion A Systems Approach to Comparing US and Canadian Reorganization of Financially Distressed Companies, Lynn M. LoPucki and George G. Triantis Introduction Initiating Reorganization Cases Preserving Firm Value During Reorganization Determining the Terms of Reorganization Conclusion Some Comments on the Challenges of Commercial Reorganization in Insolvency: Why Chapter 11? Richard F. Broude The Challenges of Commercial, Reorganization in Insolvency: Empirical Evidence From England, Harry Rajak Introduction The Context of Administration The Structure of Administration The Data Conclusion Should We Abolish Chapter 11? The Evidence From Japan, Theodore Eisenberg and Shoichi Tagashira Japanese Business Reorganization Proceedings The Data and the Questions Studied Estimates of Liquidation Value and Proposed Repayment Terms 229

4 Contents 4. Confirmation, Withdrawal, and Denial Net Gain or Loss to Creditors From Compositions Implications for US Business Reorganizations Conclusion Methodological Issues in Cross-Country Comparisons of Commercial Bankruptcy Law: Comment on Papers by Eisenberg-Tagashira and Rajak, Stuart C. Gilson Executory Contracts and Proposals Under the Bankruptcy and Insolvency Act (Canada): A Comparative Analysis With the Companies' Creditors Arrangement Act (Canada), Ellen L. Hayes Introduction General Principles Specific Types of Contracts Conclusions 293 Section III: Voidable Transactions in Bankruptcy 12. Voidable Transactions in Bankruptcy: British Law Perspectives, Ian F. Fletcher Introduction Transactions at an Undervalue Voidable Preferences The American Bankruptcy Preference Law: Perceptions of the Past, the Transition to the Present, and Ideas for the Future, Morris G. Shanker Overview The Many Exceptions to Absolute Preference Avoidance Concluding Remarks Regarding the US Situation Ideas For the Future Voidable Transactions in Bankruptcy: The Canadian Perspective, Richard H. McLaren Introduction The Various Voidable and Renewable Transactions Policy Justifications Critical Commentary Conclusion 375 xi

5 xii Contents Section IV: The Ranking of Creditors in the Distribution of Insolvent Estates 15. Canadian Bankruptcy Law: A Secured Creditor's Heaven, R. C. C. Cuming Introduction Statutory Regulation of Secured Financing Law in Canada The Role of Personal Property Security Law in Bankruptcy Preferences Under the BIA and Provincial Law Post-Petition Attachment of Security Interests Protection of Secured Creditors From Employee Wage-Claim Priorities Protection of Secured Creditors From (Some) Federal Crown Priorities Summary The Position of Creditors in the Distribution of Insolvent Estates: Consensual Secured Creditors in Japan, Yukiko Hasebe Introduction Statutory Regimes for Insolvent Companies Treatment of Secured Creditors Scope of Security Interests Conclusion Preferred Priority in Bankruptcy, Susan J. Cantlie Introduction Statutory Priority Provisions The Role of Bankruptcy Law Conclusion The Privately Appointed Receiver and the Enforcement of Security Interests: Anomaly or Superior Solution? Jacob S. Ziegel Introduction The Genesis of the Private Receivership and Subsequent Developments The Deemed Agency Clause and Conceptual Complications Relationship Between Private Receiverships, Administration Orders, and Commercial Reorganization Canadian Deviations From the British Model Why Have the Americans Not Adopted the Private Receivership? The Status of Private Receiverships in the Conflict of Laws 468

6 Contents 8. Conclusion The Canadian Private Receivership, F. H. Buckley Agency Costs and Bankruptcy Free Bargaining and Choice of Law Conclusion 482 Section V: The Personal Liability of Directors and Officers for the Debts of Insolvent Corporations 20. Personal Liability of Directors and Officers of Insolvent Companies: A Jurisdictional Perspective (England), L. S. Sealy The Position at Common Law Directors' Supposed 'Duty' to Creditors or to Have Regard to Their Interests Statutory Liability: The Background Liability for Fraudulent Trading: Insolvency Act 1986, Section Liability for Wrongful Trading: Insolvency Act 1986, Section Wrongful Trading: Scope of the Section Wrongful Trading: Nature of the Order Wrongful Trading: The New Law in Practice Directors' Personal Liability in Other Cases Liability of a Director as a 'Connected' Person Application to Other Bodies Conclusion 497 Appendix: Insolvency Act 1986, Sections 213, Insolvent Trading Down Under, Abe Herzberg Introduction Elements of Directors' Duty Defences Consequences of Contravention Holding Company's Liability for Insolvent Trading by Subsidiary Conclusion The Responsibility of Directors and Shareholders for a s^~\ Company's Debts Under New Zealand Law, John H. Farrar /521 \ 1. The Case Law Ssz 2. Statute Law Conclusion 543 xiii

7 xiv Contents 23. Must Boards Go Overboard? An Economic Analysis of the Effects of Burgeoning Statutory Liability on the Role of Directors in Corporate Governance, Ronald J. Daniels Introduction The Defects of Enterprise Liability Directors as Social Monitors of Corporate Conduct Conclusion 569 PART B: INTERNATIONAL ASPECTS Section VI: Issues in Concurrent Insolvency Jurisdiction 24. Issues in Concurrent Insolvency Jurisdiction: English Perspectives, Christopher K. Grierson Introduction Co-operation by the English Courts Bank of Credit and Commerce International 606 Appendix 1: English Insolvency Procedures 612 Appendix 2: The Jurisdiction of the English Courts to Wind Up Overseas Companies The Role of the Examiner as Facilitator and Harmonizer in the Maxwell Communication Corporation International Insolvency, Evan D. Flaschen and Ronald J. Silverman Introduction The Special Complexities and Difficulties of International Insolvencies Maxwell Communications Corporation pic The Examiner as Facilitator and Harmonizer The Order and Protocol Facilitation and Harmonization in Legal, Business, and Practical Contexts The Courts' Support for Facilitation and Harmonization Conclusion 635 Appendix: Order, Protocol, and Schedule 1 in Maxwell Case Issues in Concurrent Insolvency Jurisdiction: Comments on the. Papers by Grierson and Flaschen-Silverman, Kofi Takeuchi Challenges in International Insolvency Purely Domestic Proceedings in Each Country Remaining Issues Concurrent Insolvencies and Parent-Subsidiary and Affiliates Relationships 650

8 Contents xv 5. Blurred Borders Among International Insolvency Regimes 651 Section VII: Choice of Law Issues in International Insolvencies 27. Conflict of Laws Issues in International Insolvencies, Jay Lawrence Westbrook and Donald T. Trautman The Traditional Approach New Approaches Conclusion 667 Addendum: Additional Remarks of Donald T. Trautman Comment on the Trautman-Westbrook Paper, Yasuhei Taniguchi 671 Section VIII: Harmonization of Jurisdictional and Recognitional Rules 29. Some Observations on Fairness, Public Policy, and Reciprocity in Cross-Border Insolvencies, Douglass G. Boshkoff Fairness Public Policy Reciprocity The Future The Model International Insolvency Co-operation Act: A Twenty-First Century Proposal for International Insolvency Co-operation, Timothy E. Powers Introduction Co-operation or Chaos In the Beginning: What MIICA Is (and Is Not) The Model Act: Principles and Provisions A World With MIICA: Vision and Reality Conclusion 698 Appendix: Model International Insolvency Co-operation Act The Nordic Bankruptcy Convention, Michael Bogdan Introduction Recognition of Foreign Bankruptcy Decisions Law Applicable in Bankruptcy Publicity Measures and Their Legal Importance Claims With Preferential Rights Against Particular Assets General Preferences Compositions Concluding Observations on the Nordic Convention 706

9 xvi Contents 9. Comparison with the European Bankruptcy Convention Harmonization of Jurisdictional and Recognitional Rules: The Istanbul Convention and the Draft EEC Convention, Ian F. Fletcher Introduction: The Quest for the 'Holy Grail' Istanbul and Brussels: Similarities and Contrasts Conclusion Some Comments on Harmonization of Jurisdictional and Recognitional Rules, Richard F. Broude 729 Section IX: Problems of Insolvent Multinational Financial Institutions 34. Multinational Bank Insolvencies: The United States and BCCI, Hal S. Scott Background ' The Closing of BCCI Which Countries Make the Decisions Liability of Bank Regulators for Closing a Bank Closing an Unlawful But Solvent Bank The United States Ring Fence Branches and Subsidiaries Payment System Risks Conclusion 744 Section X: The Judges Speak 35. The Judges Speak: A Panel Discussion, Judge James L. Garrity, Jr., Mr Justice James Farley, and Mr Justice R. A. Blair 749 Index 773