Bankruptcy in UK Law
Fitch v Official Receiver
The jurisdiction is unique to insolvency,(having recently been extended from bankruptcy to company winding up), in that it allows the court to review and rescind or vary an order made by a court of co-ordinate jurisdiction. It applies to any order made in the exercise of the bankruptcy jurisdiction. The court's power to review and if thought fit rescind a bankruptcy order is, in theory at least, virtually unlimited.
Cambridge Gas Transport Corporation v Official Committee of Unsecured Creditors of Navigator Holdings Plc and Others
The purpose of bankruptcy proceedings, on the other hand, is not to determine or establish the existence of rights, but to provide a mechanism of collective execution against the property of the debtor by creditors whose rights are admitted or established.
The important point is that bankruptcy, whether personal or corporate, is a collective proceeding to enforce rights and not to establish them. There are procedures by which these questions may be tried summarily within the bankruptcy proceedings or directed to be determined by ordinary action. But these again are incidental procedural matters and not central to the purpose of the proceedings.
The English common law has traditionally taken the view that fairness between creditors requires that, ideally, bankruptcy proceedings should have universal application. There should be a single bankruptcy in which all creditors are entitled and required to prove. No one should have an advantage because he happens to live in a jurisdiction where more of the assets or fewer of the creditors are situated.
But the domestic court must at least be able to provide assistance by doing whatever it could have done in the case of a domestic insolvency. The purpose of recognition is to enable the foreign office holder or the creditors to avoid having to start parallel insolvency proceedings and to give them the remedies to which they would have been entitled if the equivalent proceedings had taken place in the domestic forum.
Belmont Park Investments Pty Ltd and Others v BNY Corporate Trustee Services Ltd and another (HM Revenue and Customs and another intervening)
The policy behind the anti-deprivation rule is clear, that the parties cannot, on bankruptcy, deprive the bankrupt of property which would otherwise be available for creditors. It is possible to give that policy a common sense application which prevents its application to bona fide commercial transactions which do not have as their predominant purpose, or one of their main purposes, the deprivation of the property of one of the parties on bankruptcy.
Stein v Blake (No.2)
Bankruptcy set-off, on the other hand, affects the substantive rights of the parties by enabling the bankrupt's creditor to use his indebtedness to the bankrupt as a form of security. Instead of having to prove with other creditors for the whole of his debt in the bankruptcy, he can set off pound for pound what he owes the bankrupt and prove for or pay only the balance. …" Although it is often said that the justice of the rule is obvious, it is worth noticing that it is by no means universal.
- Bankruptcy: Anglo‐American Contrasts
- Book Review: Lewis’ Australian Bankruptcy Law
Does intellectual capital help predict bankruptcy?
Purpose: The purpose of this paper is to explore whether intellectual capital affects the probability that a particular firm will default. The authors also test whether including intellectual capit...
France: Criminal Liability for Fraudulent Bankruptcy
Banqueroute, or fraudulent bankruptcy, is the most serious criminal offence that may arise out of insolvency proceedings, known as redressement judiciaire: this single procedure unifies earlier pro...
Bankruptcy remoteness – a remote prospect?
Lawyers and investment bankers involved in setting up structured products such as asset backed commercial paper, CDOs, CMBS and CLOs often strive to achieve “bankruptcy remoteness” for the vehicle ...
- Bankruptcy Order Made Against Alzheimer's Disease Sufferer Overturned
- Court Adds Trustees In Bankruptcy To S. 423 Claim
- UPDATE: COVID'19 Guidance Masters' Courts Bankruptcy And Companies Key Changes