Insolvency in Private International Law: National and International Approaches

Insolvency in Private International Law: National and International Approaches

Insolvency in Private International Law: National and International Approaches

Insolvency in Private International Law: National and International Approaches

Synopsis

This book provides a detailed analysis of the conceptual and practical problems posed by the increasingly common phenomenon of cross-border insolvency in respect to individuals and companies. Part I considers how such problems are approached and resolved under national legal regimes. Part II analyses the regional and international agreements and conventions that have been under negotiation in response to the special difficulties imposed by multi-jurisdictional insolvencies.

Excerpt

Traditionally each nation, and sometimes each constituent State or Province of a federal nation, has been treated as having its own system of private international law. At the same time the trans-border nature of the subject-matter and of underlying policy considerations has given rise to significant similarities in some areas of the subject. And, of course, as between common law countries there are as usual fundamental similarities and affinities.

However, a pressing need for a much more radical departure from tradition has emerged relatively recently in the law relating to cross-border insolvency. Various attempts have been made, and are being made, to meet that need. These have taken the form, not only of judicial ingenuity and creativity and of statutory innovation, but also of substantial, if often unavoidably complex, transnational cooperation. The process is continuing. In Part I of this book Professor Fletcher surveys the background against which contemporary and possible future development must be viewed. He also analyses in great and illuminating detail the ways in which problems relating to cross-border insolvency in respect of corporations and individuals have been, and are being, approached by national courts. The author compares the English approach with that taken in some other jurisdictions, such as Canada, Australia and the USA. In Part II Professor Fletcher analyses the various international and regional conventions and agreements, such as the EU Insolvency Convention and the UNCITRAL Model Law on Cross-Border Insolvency, that have been under negotiation in response to the difficult problems created by transnational insolvency. Finally the author addresses possible future developments.

The book will appeal not only to insolvency experts but also to international commercial lawyers more generally. Moreover, it can be seen as a good example of achievement of the aim of the Series, Oxford Monographs in Private International Law. That aim is to publish works of quality and originality in a number of important and developing areas of private international law.

Wadham College, Oxford P. B. CARTER

1 November, 1998 . . .

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