Corporate Insolvency Law

Mokal, Riz

doi:10.1093/acprof:oso/9780199264872.001.0001

Cited by 41 publications

(8 citation statements)

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“…Studies of the law reports have consistently turned up few examples of section 214 actions. Sealy's 1994 study of the wrongful trading remedy cited just three fully reported decisions under section 214 and a study by Mokal from 2005 found just seven reports of successful applications under the provision. A new study of cases reported up to 30 September 2013 by this author found just 16 fully reported decisions under section 214 since 1986, with applications for liability successful in 11 cases and unsuccessful in five cases.…”

Section: The Section 214 Remedymentioning

confidence: 99%

What Can We Expect to Gain from Reforming the Insolvent Trading Remedy?

Williams

2015

Modern Law Review

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This paper argues that reform of the wrongful trading remedy in section 214 of the Insolvency Act 1986 is unlikely to yield significant increases in civil recovery for creditors of insolvent companies. The paper argues that the widely held view that procedural restrictions in the provision have unduly limited the application of the remedy are without foundation and, likewise, that there is little evidence that current modest levels of litigation under the provision demonstrate underperformance in the sanction relative to the scale of the misconduct against which it is directed. The paper draws on a wide range of analytical and empirical evidence to argue that the scope for application of the sanction is inherently limited by factors independent of the particular rules within the statutory remedy.

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Section: The Section 214 Remedymentioning

confidence: 99%

What Can We Expect to Gain from Reforming the Insolvent Trading Remedy?

Williams

2015

Modern Law Review

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“…This principle has elsewhere been described as a 'central and seemingly indispensable feature' of insolvency law. 178 After Perpetual, Look Chan Ho contended that the antideprivation rule was not based in the pari passu principle but rather 'subserves the principle of collectivity…embedded in English insolvency legislation'. 179 He argues that it is this principle that requires conservation of the insolvent estate and prohibits attempts to bypass the collective insolvency regime.…”

Section: E Collectivity Principlementioning

confidence: 99%

A Statutory Basis for the Anti‐Deprivation Rule?

Kulkarni¹

2014

Intl Insolvency Rev

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This article argues that material confusions remain in the English anti-deprivation rule. It begins by considering the statutory framework and demonstrates that there are a number of distinct positions as to the legal foundation of the rule. In examining these positions, of particular concern is the relationship between the rule and the pari passu principle and the notion that the rule serves a broader collectivity principle inherent in insolvency law. The article seeks to identify the proper basis of the rule, thereby shedding light on the policy that the rule is intended to protect. It contends that while it is possible, consistently with authority, to rationalise the rule on a particular footing, the uncertainties under the existing law must be resolved by legislative reform.

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“…Needless to say, this is the very antithesis of the entire point of having a collective insolvency regime in the first place. As explained elsewhere, one of the main reasons for the existence of insolvency law is to counter the incentives possessed by the creditors to act individualistically in pursuing their claims …”

Section: Insolvency As Combating Common Pool Problemsmentioning

confidence: 99%

Harmonisation of European Insolvency Law and the Need to Tackle Two Common Problems: Common Pool and Anticommons

Weijs

2012

Intl Insolvency Rev

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Insolvency law has finally become a field of law for which harmonisation at a European level is considered both important and feasible. In deciding upon the content of such harmonised rules, there will need to be a common understanding about the goals of insolvency law and, therefore, a European debate on bankruptcy theory. Bankruptcy theory, and most notably the influential creditors' bargain theory, has long viewed insolvency law as a set of rules for overcoming common pool problems. Bankruptcy theory thus far has almost completely overlooked anticommons problems. Anticommons present themselves in a situation in which there are several owners or entitled parties, and each of the parties has it within its power to block the use by others. Should anticommons behaviour in insolvency procedures go unchecked, creditors as a whole will be harmed. Insolvency is a collective process, and this process may not be sabotaged by a single party. Four typical insolvency issues, each identified by INSOL Europe as a candidate for harmonisation at a European level, are discussed, analysing them in terms of common pool problems and anticommons: preferences, reorganisation/composition plans, claim validation and insolvency of a group of companies. Copyright © 2012 John Wiley & Sons, Ltd.

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Corporate Insolvency Law

Cited by 41 publications

References 0 publications

What Can We Expect to Gain from Reforming the Insolvent Trading Remedy?

What Can We Expect to Gain from Reforming the Insolvent Trading Remedy?

A Statutory Basis for the Anti‐Deprivation Rule?

Harmonisation of European Insolvency Law and the Need to Tackle Two Common Problems: Common Pool and Anticommons

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