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Welcome /  Blog /  2019-02-doc8 Principles of Corporate Insolvency Law, 5th ed.

2019-02-doc8 Principles of Corporate Insolvency Law, 5th ed.

Since 1990, the most classic publication to understand English corporate insolvency law is the book of Roy Goode. In autumn of 2018 it has been published in its fifth edition, edited by Kristin van Zwieten. On the continent, she will be most known for the 2016 book with an extensive commentary on the EU Insolvency Regulation (Recast), edited together with German professor Reinhard Bork. See http://www.bobwessels.nl/blog/5079/. In the early 90s I read the first edition of the book, published a few years after the coming into being of the Insolvency Act. Most interesting, and innovative for what the Dutch legal culture had to offer at that time, I found the search for philosophical foundations of corporate insolvency law, and most remarkable its strong emphasis on the treatment of credit and its relationship with legislation re corporates structures. I think it was with some luck that in practice I got generally acquainted with the English corporate insolvency system by working together with some pragmatic and clever experienced practitioners from one of the Big 4 accountancy firms, in the 90s dealing with the collapse of Canadian property developer (in Canary Warf) Olympia & York and (on a global scale) the failure of Barings bank (… and the rest is history). I admired the coherent insolvency system (with some cross-border flaws) and was impressed by strong and practice oriented judges as well as the professionality of the IPs, being regulated by (now) five recognised professional bodies. Also – quite diiferent from the Dutch system still existing – is the well considered, but in my eyes still pragmatic approach taken to the institutional setting in organising the ‘market’ of restructuring and insolvency, the role of the legislature, two separate Committees advising and discussing insolvency issues and ethical matters. In the 5th edition some paragraphs are devoted to this theme. On the continent, English developments in corporare restructuring and insolvency are followed with much interest (e.g. regarding schemes of arrangement, in cases like Apcoa), and also with what we see as major cases (the anti-deprivation rule in Belmont Park, the Nortel or the Waterfall cases). The fifth edition continues to provide a clear and comprehensive treatment of the core themes of English corporate insolvency law, including the query of what assets are available for distribution on insolvency, transactions vulnerable to being set aside, and the rules regarding improper trading and the duties and liabilities of directors. The core features of liquidation, administration (and administrative receivership), schemes of arrangement and company voluntary arrangements, as well as a ‘workout’ are identified and explained with reference to court cases and underlying policy. Evidently, the new edition has been updated throughout.

The first principled-based chapter also contains the growth of legislative surroundings reflecting a much broader range of legislation (e.g. regarding financial services and financial institutions) as well as structural reforms to the Insolvency Act, including the Enterprise Act of 2000, the Small Business and Enterprise Act of 2015, and parts with a European dimension (BRRD) and the strong English international insolvency law component, most notable since 2006 the adoption of its version of the UNCITRAL Model Law. In this fifth edition, both the more principled treatment of corporate insolvency law, as well as the last two chapters (on European and international insolvency law, in all some 160 pages), however, I regard as rather flat, in that it hardly reflect European or global tendencies and principles, such as the ones identified by Look Chan  Ho, Cross-Border Insolvency: Principles and Practice, 2016 (see http://www.bobwessels.nl/blog/2017-09-doc9-2016-book-of-look-chan-ho/) and the very much principles based approach of Reinhard Bork, Principles of Cross-Border Insolvency Law, 2017 (see    
http://www.bobwessels.nl/blog/2017-10-doc1-book-bork-on-cross-border-insolvency-law/). With regret I note the rather timid treatment of the EU Insolvency Regulation (Recast) as well, still very much explained with cases and concept of the former Regulation (not inaccurate, but reading as not so modern history), nearly fully disconnected from the large volume of texts that have been published by continental authors (writing in English). In the appendices one still finds the Virgós-Schmit Report on the failed Convention on Insolvency Proceedings of over 20 year ago. We are two sets of regulations further down the road and for a younger generation of practitioners and students this Report (worth as it certainly was), explaining 55 Articles of the Convention, which was never approved, with several provisions on the role of the Court of Justice of the European Communities (as it was called then), who were already obsolete already in 2000, must be a maze.  
What is important for day to day practice overall is that the legal regimes for handling insolvency of a company are set out in quite some detail and with clarity. In the book English (and continental) practitioners find a reliable companion.  

Kristin van Zwieten (ed.), Goode on Principles of Corporate Insolvency Law, Sweet & Maxwell 2018. ISBN 978 0 414 03448 8

Additional information, see https://www.sweetandmaxwell.co.uk/Catalogue/ProductDetails.aspx?productid=639712&recordid=6757

Note: this book I received free of charge from the publisher with the request to announce it or to review it on my blog at www.bobwessels.nl.