With the date of this publication cited as at Buddha’s Birthday 2016, in the book ‘Cross-Border Insolvency: Principles and Practice’ (Sweet & Maxwell, 2016, xlv + 351 pages), its author Look Chan Ho, discusses English cross-border insolvency law. The author is dissatisfied that this area of law lacks a solid taxonomic order and that practices relies too much on improvisation. These observations are serious as the author is a well-experienced practitioner and over the years has demonstrated to be a clever analyst of many topics of cross-border insolvency law. Improvisation, however, does not have to be a bad thing in this complex legal area. It may assist in looking for the most pragmatic solution and a fair outcome; it may rather be the arbitrariness and unpredictability that causes discontent.
The author presents a unique approach in his treatment of English’ framework of rules and regimes from the perspective of conflict of laws with a view to strengthening the understanding and practice of cross-border insolvency. He analyses the whole corpus of cross-border insolvency regimes from three conflicts perspectives, namely: (i) jurisdiction to commence insolvency proceedings, (ii) recognition and enforcement of foreign insolvency proceedings, and (iii) choice of law. In such a treatment, he argues, the principles of cross border insolvency can be compared and contrasted across the whole body of cross-border insolvency law.
The focus of the book is mainly English law, which offers, as the author points out, ‘… the widest and most complex range of cross-border insolvency regimes in the world’, which includes the EU Insolvency Regulation, Brussels I, UNCITRAL Model Law on Cross- Border Insolvency, European rules re the reorganisation and winding up of banks and insurers, several domestic English acts and the sheer enigma of common law, leading to the inclusion of court cases from Bermuda, Hong Kong, Singapore and South Africa. All these applicable cross-border regimes have been considered in two ways: (1) what is the law?, and (2) how best to evaluate these different rules.
Under the flag of jurisdiction, a comparison is made of the jurisdiction of the English court to commence insolvency proceedings, more particularly liquidation, administration, company voluntary arrangement and scheme of arrangement. The theme of recognition and enforcement deals with the recognition and enforcement by the English court of a foreign liquidation or reorganisation proceeding and for instance foreign insolvency judgments, e.g. a foreign judgment ordering the defendant to return property on the basis of violation of foreign fraudulent conveyance law
Enforcement and choice of law deal with forms of relief that may be obtained from the English court following the recognition of foreign insolvency proceedings. Choice of law issues, the author notes, have been considered fully. As this area of the law is most undeveloped, this part is organised according to the typical relief sought in cross-border cases, including such topics as discharge of debt, set-off, and avoidance of antecedent transactions.
All the cross-border regimes have been compared and contrasted in order to state the current position and to offer recommendations going forward.
Under the readers of the book one would expect practitioners. They will find a helpful and practical treatment of queries that often occur in practice, including a systematic clarification, e.g. nine points of view to take into account when deciding about a debtor’s COMI (although the 9th (‘the standard of proof is the standard of balance of probability’) is not easy to understand for non-English readers) and that the Chancellor’s incorrect view regarding COMI in the Stanford case had already been signalled by me in 2010 on this blog as well as in my book regarding International Insolvency Law. Another example for support in practice is Ho’s analysis of case law leading to nine propositions regarding the demarcation between the Insolvency Regulation and Brussels I. This should suffice to conclude that, given the depth and detail of the treatment and the sharp analysis presented, the readers also will be scholars. The reader should be prepared to cope with strong or pedantic views, such as that the pari passu principle is ‘often misunderstood’, that English’ state of law regarding cross-border insolvency is ‘chaotic’, that the English courts’ current approach to the extra-territorial application of insolvency provisions is ‘deeply unsatisfactory’, that the UNCITRAL Model Law is ‘a profoundly misguided document’ and that the Guide to Enactment and Interpretation of the Model Law seems misconceived and may hinder the Model Law’s cause.
Nearly all chapters contain extensive footnoting with references to cases and literature, however, rather in common with all literature provided by English authors, it suffers from their unmistakable disease of mastering only one language and even within these sources limiting research to English authors.
Look Chan Ho, Cross-Border Insolvency: Principles and Practice, Sweet & Maxwell, 2016, xlv + 351 pages.
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