A Global View of Business Insolvency Systems

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Jay Lawrence Westbrook
Martinus Nijhoff Publishers, 2010 - Law - 300 pages
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We live in an age of economic turmoil. The recent crises emphasize the need for modern, sophisticated rules to govern businesses in financial distress in order to realize value from distressed companies and to protect economic institutions. Guided by the World Bank s Principles and Guidelines on International Insolvency, we have assembled, compared and analysed the legal principles and institutions of many different jurisdictions. Our goal is both practical and scholarly. Our work supplements the Legislative Guide of the UN Commission on International Trade Law by providing extensive analysis of the ways in which various legal systems address the issues that arise in insolvency law, including both liquidation and reorganization. It employs many examples of national and international practice in every area of insolvency law. For teachers, those examples can enliven and enrich courses on domestic insolvency law by revealing how similar problems are viewed and resolved in other legal systems. After introductory discussions of debt collection laws generally, including those governing the grant of security interests or liens, the book discusses each of the central elements of the insolvency process, beginning with discussions of valuation and corporate officer liability, then initiation of an insolvency proceeding and the resulting moratorium on creditor action, and continuing through the treatment of various forms of property and contracts and the voiding of certain transactions that may have preceded the initiation of legal action. Separate chapters work though the particular considerations applicable to cases that seek to preserve distressed businesses, including both formal proceedings and informal workout agreements as tools in the reorganization or rescue process. Another chapter addresses the crucial problem of institutional and staffing requirements without which the best law will fail to achieve its goals. Two remaining chapters address other areas of special importance: the treatment of employees and the management of cases involving multinational businesses.
 

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Contents

Introduction
1
Systems for the Enforcement of Debt
7
Corporate Insolvency Legislation
51
Corporate Rehabilitation Proceedings
121
InformalWorkouts and Restructuring
165
Employee Rights in Insolvency
183
Judicial and Administrative Institutions
203
CrossBorder Considerations
227
Bibliography
267
Index
277
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About the author (2010)

Jay L. Westbrook holds the Benno C. Schmidt Chair of Business Law at The University of Texas School of Law. He practiced law in Washington, D.C., as a partner in Surrey & Morse, specializing in bankruptcy reorganization and international commercial litigation. He has taught at Harvard Law School, the University of London, and Humboldt University-Berlin. He headed the American Law Institute Transnational Insolvency Project and the U.S. Delegation to the UNICITRAL Working Group on Transnational Insolvency, has served as a consultant to the National Bankruptcy Review Commission, the IMF, and the World Bank, and is President of the International Academy of Commercial and Consumer Law and a director of the International Insolvency Institute. Among his books and articles is "The Law of Debtors and Creditors" (Aspen 6th ed. 2009) (co-author). Charles D. Booth (BA, Yale University 1981, summa cum laude; JD, Harvard Law School, 1984, cum laude) is a Professor of Law and Director, Institute of Asian-Pacific Business Law at the Richardson School of Law, University of Hawaii. He is also a Senior Advisor to Sonnenschein Nath & Rosenthal LLP. Before returning to Hawaii, he taught for 16 1/2 years in the Faculty of Law at the University of Hong, where he has also served as Director of the Asian Institute of International Financial Law. He has served as a consultant for the World Bank, the ADB, the International Republican Institute, the ABA-UN Development Programme International Legal Resources Center, and the OECD. He heads the insolvency portion of an ADB law reform project for Vanuatu, for which he has proposed new insolvency legislation. Christoph G. Paulus is Professor of Law at the Humboldt University at Berlin, Germany teaching i.a. national and international insolvency law. As an expert in this area, he has published several books and numerous articles. He has worked extensively as a Consultant to the World Bank and the International Monetary Fund in Washington D.C. He is a member of various national and international insolvency organizations (i.a. the International Insolvency Institute, of which he is a Director) and acted several times as an adviser to the German delegation at UNCITRAL s Working Group on Insolvency Law. Harry Rajak formerly Dean of the Law School of the University of Sussex, was for several years joint editor of the leading UK journal "Insolvency Law and Practice"; he was a consultant at the London-based law firm, Lovells and a member of the UK s Insolvency Service s reviews of UK insolvency laws in 1993 and 2000. He has written widely on Company Law, Corporate Insolvency and Commercial Law issues. He has served as an international consultant on the insolvency laws of several countries, including South Africa, Russia, Hungary, and Poland and other central and eastern European countries, and has held visiting professorships at the Law Schools of the Hebrew University, Jerusalem, Bonn University (where he was the Jean Monnet Professor of European Law), and the University of Connecticut, USA.

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