International Co‐operation in Cross‐Border Insolvency: HIH Insurance

DOIhttp://doi.org/10.1111/j.1468-2230.2008.00716_1.x
AuthorJohn Townsend
Publication Date01 Sep 2008
Rodger seem to suggest that tort law is distinctively suited to protection of con-
£icting right s and interests.
Finally, if self-defence is nowraised in the context of a civilclaim, the interpre-
tation of reasonable belief described above may turn the spotlight on to the con-
duct of the pre-operation brie¢ng in thecontext of an inquiry into unlawfulness.
In a sense, this re£ects the manydimensions of vicarious liability.In this case, not-
withstanding issues of personal responsibility, the individual o⁄cer’s actions are
embedded in and in£uenced by the enterprise and culture of the employer’, and
shaped by the resources applied to his preparation. In the trespass claim, this may
¢nd its expression in the courseof an inquiry into self-defenceand, therefore, into
the individual o⁄cers state of mind and the processes that in£uenced it.
International Co-operation in Cross-Border Insolvency:
HIH Insurance
JohnTownsend
n
The House of Lords decision in HIH Insurance raised important questions about the pari passu
principle of distribution in cross-border insolvency. This comment examines the case in light
of academic debate, arguing that Lord Ho¡manns application of the principle of (modi¢ed)
universalism achieved distributive justice amongst HIH group creditors.
Professor Fletcher has observed that the interaction of two or more legal systems
in a cross-border insolvency provokes a diversity on‘fundamental mattersof prin-
ciple,’ which is,‘unusually intense, even by the standards of private international
law.
1
Since any insolvencyinevitably involves ^ as ProfessorWorthington has put
it ^ a shortfall’ of the assets of a companyagainst creditors, it follows that di¡er-
ences betweenjurisdictions on questions of prioritycreate incentivesto litigate for
creditors of a multinational company.
2
This has been recognised by Professor
LoPucki as a noxious type of ‘forum shopping.
3
In an attempt to prevent, or at
least to place limits upon, such value-destroying litigation, the approval of the
UNCITRAL Model Law on Cross-Border Insolvency by the United Nations
General Assembly was an important step towards facilitating future international
n
Pupil, Maitland Chambers,2007^8.Than ks aredue to Professor Vanessa Finch, of the London School
of Economics, and the anonymousreviewer of the Modern LawReview for their helpful observations
on the earlier drafts of this comment.
1 I. Fletcher,Insolvencyin PrivateInternationalLaw (Oxford: OxfordUniversity Press,20 05)at para 1.11.
2 S.Worthington, Equity(2nd ed) (Oxford: Oxford UniversityPress, 200 6) 53.
3 L. M. LoPucki,‘Cooperation in International Bankruptcy:A Post-Universalist Approach’ (1999) 85
Cornell Law Review696, 721.
JohnTownsend
811
r2008 The Author.Journal Compilation r2008 The Modern Law Review Limited.
(2008) 71(5) 801^822

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