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2024-05-doc2 Re-Examining Insolvency Law and Theory

Re-examining Insolvency Law and Theory. Perspectives for the 21st Century

Four decades ago, looking at insolvency acts in many countries, its core was related to formal (procedural) proceedings, focussing on assets and on liquidation, managed by ‘liquidators’ (IPs) all full-blown controlled by courts. Especially during the last two decades, however, the paradigm has shifted: less formal (quasi-contractual) procedures, focussing on debts and their restructuring, managed by the debtor itself, sometimes guided by IPs and a short confirmation phase for the courts. Basic assumptions underlying bankruptcy acts, working well for liquidation, are being rethought and criticized. New practical questions are being discussed. Many aspects of restructuring cannot meaningfully solved by applying a rather ancient act. The book announced here stresses the important role that legal theory can play in the development or the renewal of insolvency and restructuring laws.
The book presents three kinds of themes, covered in seventeen chapters. The first part deals with philosophical considerations and their influence on insolvency laws. Next to thinkers as Dworkin, Nietzche and Rawls, morality, liberalisation (e.g. of criminal elements), and feminism are explored. The second theme presents four chapters, touching upon decision theory, competing goals between insolvency law and theory, successor liability and vulnerability and insolvency law. It is clear that both chapters open their doors for philosophical considerations and theoretical perspectives, with attention for the internal mechanisms of insolvency law. The third theme (with five chapters) evaluates how external theoretical paradigms could be used to shift perspectives on insolvency frameworks. Other legal areas raise their lenses on insolvency law from different angles: human rights, company law, contract theory, property law and psychology theories. Indeed, as the editors conclude, certainly new ways to theorise about insolvency and rescue.
This publication will certainly be welcomed by academics and students interested in insolvency and rescue law. In scope it is wide enough to think that it will be of interest for readers around the globe. Legal professionals and practitioners specialising in insolvency law will be enticed in as far as a rather uncommon way of thinking about day-to-day practical problems could broaden their perspectives. It may also be a welcome book for staff of national or European legislators. Theoretical concepts, philosophical considerations and unexpected perspectives from other fields may inspire them to develop fresh insights.
In all a welcome contribution to scholarship in relation to the law of corporate insolvency and rescue. With many aspects to discuss the traditional assumptions as the foundations of many insolvency acts, and food to further develop thinking about this necessary shift in paradigm.

Emilie Ghio, John M. Wood, Jennifer L.L. Gant, Re-examining Insolvency Law and Theory, Perspectives for the 21st Century, Edward Elgar Publishing, 2023. ISBN 978 1 80392 875 3.

Bob Wessels,
Professor em. University of Leiden
Original source: eurofenix Spring 2024, p. 44