Bankruptcy and Insolvency in UK Law
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.
Ebrahimi v Westbourne Galleries Ltd; Re Westbourne Galleries Ltd
The words are a recognition of the fact that a limited company is more than a mere judicial entity, with a personality in law of its own: that there is room in company law for recognition of the fact that behind it, or amongst it, there are individuals, with rights, expectations and obligations inter se which are not necessarily submerged in the company structure.
HIH Casualty and General Insurance Ltd v JLT Risk Solutions Ltd
This was based upon what English judges have for many years regarded as a general principle of private international law, namely that bankruptcy (whether personal or corporate) should be unitary and universal. There should be a unitary bankruptcy proceeding in the court of the bankrupt's domicile which receives world-wide recognition and it should apply universally to all the bankrupt's assets.
Heath v Tang ; Stevens v Peacock
Nevertheless, the principle that the bankrupt is divested of an interest in his property and liability for his debts remains fundamental in the new code. The consequences for the bankrupt's right to litigate do not seem to us inconvenient or productive of injustice. The bankruptcy court acts as a screen which both prevents the bankrupt's substance from being wasted in hopeless appeals and protects creditors from vexatious challenges to their claims.
Seeking Shelter in Personal Insolvency Law: Recession, Eviction, and Bankruptcy's Social Safety Net
Many legal systems understand consumer insolvency laws as social insurance, providing relief and a ‘fresh start’ to over‐indebted households who fall through gaps in the social safety net. Personal...
- Kiesiläinen et al: Consumer Bankruptcy in Global Perspective and Ziegel: Comparative Consumer Insolvency Regimes: A Canadian Perspective
- Insolvency: The Regular Payment of Debts. The Law Reform Commission of Australia. [Report No. 6, Australian Government Publishing Service, Canberra. 1977. 156 pp. No price given.]: Handbook on Bankruptcy and Deeds of Arrangement Law and Practice, being a third edition of Ivan Cruchley's Handbook on Bankruptcy Law and Practice. By Michael Crystal and Brinsley Nicholson. [London: Oyez Publishing. 1978. xli + 268 pp. £15·00.]
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...
- Personal Insolvency Bankruptcy
Global bankruptcy financial restructuring and insolvency group releases the Q4 2020 issue of International Restructuring Newswire
Our global bankruptcy financial restructuring and insolvency team has released its quarterly International Restructuring Newswire.
Chapter 15: The Bankruptcy Code’s New Cross-Border Insolvency Rules
Chris Laughton, a UK insolvency practitioner and publisher of InsolvencyBlog.com, has a number of recent posts on the adoption in the UK of the Model Law on Cross-Border Insolvency (“Model Law”), a...
- Bankruptcy (Scotland) Act 2016: Personal Insolvency Made Clearer