The characterization of pre-insolvency proceedings in private international law

Mevorach, I and Walters, A ORCID: https://orcid.org/0000-0002-5854-4655, 2020. The characterization of pre-insolvency proceedings in private international law. European Business Organization Law Review. ISSN 1566-7529

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Abstract

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 cross-border 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:	26 February 2020
ISSN:	1566-7529
Identifiers:	Number Type 10.1007/s40804-020-00176-x DOI 1298919 Other
Rights:	© the author(s) 2020. This article is licensed under a Creative Commons Attribution 4.0 International License, which permits use, sharing, adaptation, distribution and reproduction in any medium or format, as long as you give appropriate credit to the original author(s) and the source, provide a link to the Creative Commons licence, and indicate if changes were made. The images or other third party material in this article are included in the article's Creative Commons licence, unless indicated otherwise in a credit line to the material. If material is not included in the article's Creative Commons licence and your intended use is not permitted by statutory regulation or exceeds the permitted use, you will need to obtain permission directly from the copyright holder. To view a copy of this licence, visit http://creativecommons.org/licenses/by/4.0/.
Divisions:	Schools > Nottingham Law School
Record created by:	Jonathan Gallacher
Date Added:	02 Mar 2020 10:34
Last Modified:	02 Mar 2020 10:34
URI:	https://irep.ntu.ac.uk/id/eprint/39341

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