This new edition of Corporate Insolvency Law builds on the unique and influential analytical framework established in previous editions - which outlines the values to be served by insolvency law and the need for it to further corporate as well as broader social ends. Examining insolvency law in the fast-evolving commercial world, the third edition covers the host of new laws, policies and practices that have emerged in response to the fresh corporate and financial environments of the post-2008 crisis era. This third edition includes a new chapter on the growing issue of cross border insolvency and deals with a host of recent developments, notably; the consolidation of the rescue culture in the UK, the rise of the pre-packaged administration, and the substantial replacement of administrative receivership with administration. Suitable for advanced undergraduate and graduate students, professionals and academics, Corporate Insolvency Law offers an organised basis for rising to the challenges of an ever-shifting area of the law.

Corporate Insolvency Law: Perspectives and Principles

Title retention functionally serves as a security device for ensuring the payment of the purchase price in a sales contract, but not all jurisdictions recognize it as a security interest. The research aims to compare the recognition and treatment of title retention in Vietnam, England, France, the United States and Australia. It examines the issues arising in Vietnam concerning the existing law of title retention and the prospect of a reform that possibly involves the importation of the Article 9 model. The research is conducted using the doctrinal and comparative analysis methods with the aid of a critical outlook and a discussion on the legal transplant. It is found that English law insists on the formalism approach that does not accept title retention to the original goods as a security interest. It raises the unexpected impact on the Sale of Goods Act after the FG Wilson (Engineering) Ltd v John Holt & Co (Liverpool) Ltd and PST Energy 7 Shipping LLC v OW Bunker Malta Ltd rulings. Vietnamese law adopts the French law approach that treats title retention as a security interest, but it is merely a seller-based security interest that excludes the participation of other. Article 9 of the American Uniform Commercial Code and the Australian Person Property Securities Act are an appealing and increasingly-accepted model of the law on secured transactions. It introduces the concept of purchase-money security interest that includes the title retention arrangement. The functionalism, unitary approach and the notice filing system under the Article 9 offer a comprehensive treatment of a purchase-money security interest as the exception of the general security interest. The findings suggest that even though Article 9 is currently a good model in this area, the import of this model may encounter some resistance from the angle of legal culture and legal practice. From the Vietnamese perspective, it is possible to build the law of purchase-money security interest running parallel with other devices in the scheme of a Civil Code before considering adopting a unitary functionalism law of secured transactions.

The recognition and treatment of title retention in the legal systems of the United Kingdom, Vietnam and related jurisdictions:a comparative study

Corporate Insolvency Law: Agendas and objectives

This thesis is concerned with how and when proprietary relief ought to be available in certain commercial situations. The task of the thesis is to contribute to the ongoing debate whether and on what basis proprietary relief ought to be available beyond settled traditional categories. Traditional proprietary rules and methodologies are no longer capable of providing a logical basis for determining when proprietary relief is appropriate in the receipt and collection of money in commercial transactions. Such rules were developed in earlier commercial times when commercial transacting was slower and less sophisticated than today. In recent times, money, that quintessential commercial commodity, has undergone metamorphosis from a tangible physical object to an essentially ephemeral electronic impulse. Indeed, in the light of these developments, it is argued that the traditional proprietary base requirement encapsulated in common law following and equitable tracing is becoming increasingly impractical to meet. Therefore, it is suggested that we should abandon the restrictions associated with the proprietary base requirement. This was presaged by the ‘swollen assets theory’ which operated in some jurisdictions in the United States during the Great Depression. Moreover, the weakness and limitations of manipulating traditional proprietary relationships such as the trust, fiduciary obligations or subrogation, in an ad hoc way in order to achieve a desired result, are highlighted. Instead, it is necessary to return to and develop a modem explanation of equitable proprietary intervention. As courts have become more willing to intervene in commercial relationships, equity has been an important instmment in commercial intervention, particularly where proprietary relief is involved. Equity continues to base its intervention on the identification and remedy of unconscionable conduct of various forms. However, in recent times the intervention of equity’s provision of proprietary relief in commercial relationships has been explained on the basis that a party did not assume the risks associated with the commercial transaction (particularly the status of an unsecured creditor) because of the insolvent’s unconscionable conduct. Contrary to the contentions of common law lawyers (particularly some modem restitution lawyers), equity can and does operate on a principled basis. The concept of non-assumption of risk is the starting point for the development of a theory of when a court exercising equitable jurisdiction ought to intervene in commercial relationships. The concept of non-assumption of risk is not only used in the thesis to explain a variety of traditional equitable relationships and remedies, but also as a basis for a theory of objective non-assumption of risk which would apply in situations where proprietary relief has not been readily available in the past. Under the theory of objective non-assumption of risk, the unconscionable conduct of the insolvent which has led to a creditor’s unsecured status is remedied. As a proprietary base would no longer be a pre-condition to equitable relief, it is argued that a general equitable lien would be an appropriate form of remedy where non-assumption of risk had been proved. Whether the general equitable lien would extend to assets subject to a floating charge or encumbered assets is still to be resolved, although there are sound policy reasons both for and against the imposition of a lien in such circumstances. It is likely that, notwithstanding the establishment of objective non­ assumption of risk, an insolvent’s administrators would still have certain defences open to them and some of the kinds of defences which may be available are discussed and evaluated. The theory of objective non-assumption of risk is a natural progression and outcome of the continuing breakdown of the divide between personal and proprietary relief.

Equity's domain : risk, monetary transactions and insolvency administration

Corporate Insolvency Law: The quest for turnaround

https://onlinelibrary.wiley.com/doi/pdf/10.1111/j.1468-2230.1980.tb01605.x

The infiltration of equitable doctrine into english commercial law

https://onlinelibrary.wiley.com/doi/pdf/10.1111/j.1468-2230.1959.tb00545.x

Gareth H. Jones

Papers

The infiltration of equitable doctrine into english commercial law

Delegation By Trustees: A Reappraisal