Making Commercial Law: Essays in Honour of Roy Goode

By Ross Cranston; Royston Miles Goode | Go to book overview

18
Universal Participation in Transnational Bankruptcies

JAY LAWRENCE WESTBROOK

It is rare that someone can play the leading instrument or conduct the orchestra, taking one role or the other as the programme requires. It is even rarer that someone is both commanding and beloved. That rare man, Professor Roy Goode, has contributed both scholarly work and leadership central to the internationalization of the field of commercial law.

An example of his leadership close to my heart was his suggestion that I teach, with Professor Harry Rajak, the first offering of a course at the University of London in Comparative and International Insolvency. Although that happy experience is only 6 years past, it already seems an antique age in the field of transnational insolvency. No area of the law more perfectly reflects the accelerating globalization of commercial and financial markets, in which process Professor Goode continues to play such an important role.

A recent and highly interesting development is the initialling of the European Convention on Insolvency Proceedings.1 Despite some weaknesses and drawbacks, it represents a step forward in an area where international agreement has been remarkably difficult to achieve.2 There has been much criticism of its deference to 'secondary' proceedings, which are local proceedings that largely trump the 'main' proceeding under the EU Convention scheme.3 Much less attention has been given to its most important step forward, the adoption of broad cross-filing provisions that permit each local liquidator to file claims in every proceeding concerning the same debtor in other jurisdictions on behalf of all the claimants in the

____________________
1
Convention on Insolvency Proceedings, initialled 25 September 1995 (' EU Convention'). The Convention has been initialled but not yet signed or ratified by the member states.
2
Donald T. Trautman, Jay Lawrence Westbrook, and Emmanuel Gaillard, "Four Models of International Bankruptcy" ( 1993) 41 Am. J. Comp. Law 573 (hereinafter 'Models'). That article was written with reference to an earlier draft of the Convention, but the present text is similar for most of the purposes of this essay.
3
Harry Rajak, Peter Horrocks, and Joe Bannister, European Corporate Insolvency: A Practical Guide, 2nd edn. ( 1995), pp. 13-14 (hereinafter 'Guide').
Calvin Johnson was, as ever, generous in his assistance on certain aspects of this essay, although all the errors are mine. This essay speaks as of June, 1996.

-419-

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