The characterization of pre-insolvency proceedings in private international law

Mevorach, I. and Walters, A. ORCID: 0000-0002-5854-4655, 2019. The characterization of pre-insolvency proceedings in private international law. European Business Organization Law Review. ISSN 1566-7529 (Forthcoming)

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The decade since the financial crisis has witnessed a proliferation of various ‘light touch’ financial restructuring techniques in the form of so-called pre-insolvency proceedings. These proceedings inhabit a space on the spectrum of insolvency and restructuring law, somewhere between a pure contractual workout, the domain of contract law, and a formal insolvency or rehabilitation proceeding, the domain of insolvency law. While, to date, international insolvency instruments have tended to define insolvency proceedings quite expansively, discussion of the cross-border implications of pre-insolvency proceedings has barely begun. The question is whether pre-insolvency proceedings should qualify as proceedings related to insolvency for the purpose of private international law characterization. The risk is over-inclusivity of cross-border insolvency law, which, where it is based on universality and unity, might defeat contractual expectations. This article argues, however, that we should be slow to exclude pre-insolvency proceedings from crossborder insolvency law: these proceedings are initiated in the zone of insolvency, their effectiveness depends on a statutory mandate and not purely on private ordering, they interact and intersect with formal proceedings, and can benefit from the unique system developed by cross-border insolvency law. We suggest, though, that modified universalism (the leading norm of cross-border insolvency) and international insolvency instruments, should, and are able to, adjust to the peculiarities of pre-insolvency proceedings to address concerns about inclusivity and accommodate pre-insolvency proceedings adequately.

Item Type: Journal article
Publication Title: European Business Organization Law Review
Creators: Mevorach, I. and Walters, A.
Publisher: Springer
Date: 1 July 2019
ISSN: 1566-7529
Divisions: Schools > Nottingham Law School
Depositing User: Jill Tomkinson
Date Added: 02 Jul 2019 14:07
Last Modified: 02 Jul 2019 14:07

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