International insolvency: The way ahead
1993; Wiley; Volume: 2; Issue: 1 Linguagem: Inglês
10.1002/iir.3940020104
ISSN1180-0518
Autores Tópico(s)Legal principles and applications
ResumoInternational Insolvency ReviewVolume 2, Issue 1 p. 7-28 ArticleFree Access International insolvency: The way ahead Ian F Fletcher M.A., LL.M., Ph.D., Ian F Fletcher M.A., LL.M., Ph.D. Professor of Commercial Law and Head of the Insolvency Law Unit, Centre for Commercial Law Studies, Queen Mary and Westfield College, University of London. This is a revised version of the text of an Inaugural Lecture delivered in Queen Mary and Westfield College on 3 June 1992.Search for more papers by this author Ian F Fletcher M.A., LL.M., Ph.D., Ian F Fletcher M.A., LL.M., Ph.D. Professor of Commercial Law and Head of the Insolvency Law Unit, Centre for Commercial Law Studies, Queen Mary and Westfield College, University of London. This is a revised version of the text of an Inaugural Lecture delivered in Queen Mary and Westfield College on 3 June 1992.Search for more papers by this author First published: 1993 https://doi.org/10.1002/iir.3940020104Citations: 2 AboutPDF ToolsRequest permissionExport citationAdd to favoritesTrack citation ShareShare Give accessShare full text accessShare full-text accessPlease review our Terms and Conditions of Use and check box below to share full-text version of article.I have read and accept the Wiley Online Library Terms and Conditions of UseShareable LinkUse the link below to share a full-text version of this article with your friends and colleagues. Learn more.Copy URL Share a linkShare onEmailFacebookTwitterLinkedInRedditWechat References 1 See Re Maxwell Communications Corporation plc (No 2); Barclays Bank plc [1992] BCC 757 (CA); Re the petition of A W Brierley (Case No. 92-B41453 (TLB)), United States Bankruptcy Court, Southern District of New York (Judge T L Brozman), 4 August 1992. For the two types of procedure referred to, see Title 11 of the United States Code, Chapter 11 (Reorganization); Insolvency Act 1986 (United Kingdom), Part II (Administration Orders). Google Scholar 2 Such considerations appear to have been a factor in the decision of Hirst J. in Felixstowe Dock and Railway Co v US Lines Inc [1989] QB 360, in which he declined to discharge a Mareva injunction relating to the English assets of an insolvent US company which was undergoing Chapter 11 proceedings in the state of New York. Google Scholar 3 See Dalhuisen in Fletcher (ed) Cross-Border Insolvency: National and Comparative Studies (Tübingen, 1992), Chapter 10, esp at pp 190, 196–198. Google Scholar 4 See Bogdan in Fletcher, op cit supra n 3, Chapter 11, esp at pp 206–214. Google Scholar 5 See Makoto Ito in Fletcher, op cit supra n 3, Chapter 9, esp at pp 180–181, 182–183. (See, however, the new proposals of reform of Japanese law, post p. 87.) Google Scholar 6 See Hanisch in Fletcher, op cit supra n 3, Chapter 6, esp at pp 107–110, 114–117, and cases there cited, notably BGHZ 88, 147 (1983), and BGHZ 95, 256 (1985). Google Scholar 7 See e. g. Re A Company (No. 002470 of 1988) ex parte Nicholas [1991] BCLC 480; International Westminster Bank v Okeanos [1987] 3 All ER 137. Google Scholar 8 See e. g. Banque des Marchands de Moscou v Kindersley [1951] 1 Ch 112 (CA); Re Compania Merabello San Nicholas SA [1973] 1 Ch 75. Google Scholar 9 See Re Bank of Credit and Commerce International SA (No 2) [1992] BCC 715 (CA) Judgment and Order of the District Court of Luxembourg, Sixth Chamber (1431.12P) (M Welter, Vice-President), 3 January 1992; USA v BCCI Holdings (Luxembourg) and others (Docket No. CR 91 0655), United States District Court for the District of Columbia (Green, District Judge), 24 January 1992. Google Scholar 10 By October 1992 it was reported that more than 93% of the BCCI creditors had voted in support of the plan. (The Times, 8 October 1992.) Google Scholar 11 A similar solution - i. e. a pooling of all assets and all claims in a co-ordinated administration of a complex grouping of insolvent companies- has been devised by the office-holders responsible for the administration/Chapter 11 hybrid procedure in the Maxwell Communications Corporation case, referred to supra at n 1. (The Times, 15 October 1992.) Google Scholar 12 For a survey of the history of such treaties since 1715, see Lipstein in Fletcher (ed) Cross-Border Insolvency; Comparative Dimensions (The Aberystwyth Insolvency Papers) (London, 1990), Chapter 14. See also Dobson, Cross-Border Insolvency; Comparative Dimensions (The Aberystwyth Insolvency Papers Chapter 15, for an account of Latin American treaties. See also Nadelmann (1944) 93 U Pa L Rev 58. Google Scholar 13 Convention of 7 November 1933: (1935) 155 LNTS 115 (English and French translation at p 133). See Bogdan loc cit supra n 4 at p 214, and in (1985) 34 ICLQF 49. Google Scholar 14 For the text, see (1943) 37 AJIL Supp 149. For comments, see Lipstein, loc cit supra, n 12, at pp 228–229; Dobson, in op cit supra, n 12, Chapter 15, at pp 237–248. Google Scholar 15 Convention of 21 February 1928, 86 LNTS at 120 and 254. For comments see Lipstein, in op cit supra, n 12, at pp 229–230; Dobson, op cit supra, at pp 249–262. Google Scholar 16 For detailed analysis of the first EC Project for a Bankruptcy Convention, see: Fletcher, Conflict of Laws and European Community Law (1982), Chapter 6, and also (1977) 2 ELR 15; Lasok and Stone, Conflict of Laws in the European Community (1987), Chapter 10. Google Scholar 17 Convention of 5 June 1990 (Council of Europe). For the text, see (1991) 1 International Insolvency Review (IIR) at 233–248 (English version), and at 249–260 (French version), with Introductory Note by P. Winship at pp 223–232. The English text is also published in Fletcher, op cit supra, n 12, Appendix II. Google Scholar 18 Istanbul Convention of 5 June 1990, Art 34. Google Scholar 19 Istanbul Convention of 5, Art 40, which permits ratifying states to make reservations disapplying either Chapter II or Chapter III of the Convention. Google Scholar 20 Istanbul Convention of 5, Art 8. Google Scholar 21 In this respect, the EC Bankruptcy Convention will embody the same approach as that of the Convention of 27 September 1968 on Jurisdiction and Enforcement of Judgments in Civil and Commercial Matters (the Brussels Convention), Title II of which contains rules of direct jurisdiction. Google Scholar 22 Supra, n 1. Google Scholar 23 Supra, n 9. Google Scholar 24 For extended accounts of the case authorities, see Fletcher, Law of Insolvency (1990), Part III, esp Chapters 28 and 29; Smart, Cross-Border Insolvency (1991); Blom-Cooper, Bankruptcy in Private International Law 1954), also published in (1955) 4 ICLQ 170. Google Scholar 25 Relevant parts of s 426 are reproduced below as Annex A. Google Scholar 26 The two orders are SI 1986/2123 and SI 1989/2409. The current list of countries and territories thereby assimilated into the co-operative framework established by s 426 of the Insolvency Act 1986 is: Anguilla, Australia, the Bahamas, Bermuda, Botswana, Canada, Cayman Islands, Falkland Islands, Gibraltar, Hong Kong, the Republic of Ireland, Montserrat, New Zealand, St Helena, Turks and Caicos Islands, Tuvalu, and the Virgin Islands. The section also applies to any of the Channel Islands or the Isle of Man, by virtue of s 426(11)(a). In the case of Guernsey (together with Alderney and Sark) the section applies subject to modifications imported by SI 1989/2409. Google Scholar 27 Insolvency Act 1986, s 426(5). Google Scholar 28 Re Dallhold Estates (UK) Pty Ltd [1992] BCC 394. Google Scholar 29 Title 11, US Code, s 304, reproduced below as Annex B. For discussions of the section, including surveys of the case law and copious literature it has generated, see Gitlin, Flaschen and Grimes in Norton Bankruptcy Law and Practice (1989), Chapter 19, also printed in Fletcher, op cit supra n 12, Chapter 4(b); see also Kozyris in Fletcher, op cit supra n 3, Chapter 13. Google Scholar 30 Australian Law Reform Commission, Report No 45, General Insolvency Inquiry (2 Vols, 1988). Substantial parts of the report's recommendations, but not those on Cross-Border Insolvency, were adopted in the Australian Corporate Law Reform Bill of 1992. (The main provisions of the Australian Reform Bill are discussed by Ron Harmer, post, p 74). Google Scholar 31 Draft section CF2, taken from the Report referred to in n 30 above, is reproduced below as Annex C. Chapter 19 of the Report is reproduced in full in Fletcher, op cit supra n 12, Chapter 16. Google Scholar Citing Literature Volume2, Issue11993Pages 7-28 ReferencesRelatedInformation
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