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Table of Cases xiii

Table of Legislation xviii

1. Introduction-Consistency of Principle in Corporate Insolvency 1

1. Introduction 1

2. The role of insolvency law in society 2

3. The place of 'equality' 4

a. Liberty 7

b. Reasonableness 8

c. Equality 9

4. Could insolvency law really be consistent? 10

5. Constructive interpretation 17

6. Some comments on the role of efficiency 20

7. An overview of the book 27

2. The Creditors' Bargain and the Collectivity of the Liquidation Regime 32

1. Introduction 32

2. The Creditors' Bargain 33

3. Fundamentals of the Creditors' Bargain 37

4. Consent 40

a. Mere preferences 41

b. Varieties of consent 43

c. Time for the determination of self-interest 47

d. Level at which self-interest is to be reckoned 47

5. The normative appeal of the ex ante position 49

6. The Creditors' Bargain as description 56

7. Conclusion 59

3. The Authentic Consent Model-Justifying the Collective Liquidation Regime 61

1. The plot 62

2. The cast 68

3. The characters 70

4. The stage 72

a. Rationality 72

b. Dramatic Ignorance 73

c. The choice position 75

5. The performance 82

6. The denouement 86

7. Conclusion 90

4. The Pari Passu Principle and its Relationship with Other Methods of Insolvency Distribution 92

1. Introduction 92

2. The myth of pari passu distribution 96

3. The immunity/priority fallacy 102

4. The pari passu principle in action? 106

5. Fairness as 'equality' 116

6. The role of 'equality' 123

7. The removal of tax claims preferences 128

8. Conclusion 132

5. The Priority of Secured Credit 133

1. Introduction 133

2. The pari passu myth again and the 'privilege view' of security interests 136

3. Tort creditors and the Exploitation Hypothesis 138

a. Secured credit and large firms 139

b. Strategic liquidation and small firms 145

4. The Exploitation Hypothesis and 'uninformed' creditors 152

a. Uninformed in the market 153

b. Uninformed because 'unsophisticated' 156

5. 'Non-adjusting' creditors and the Inefficiency Hypothesis 160

a. The relationship between risk, security, and interest rates 162

b. Monitoring inefficiencies? 171

6. Informal 'rescues', trade creditors, and the bank's share 175

7. Beginning the affirmative case for the priority of secured lending 179

8. Conclusion 186

6. Administrative Receivership and the Floating Charge 188

1. Introduction 188

2. The mysterious floating charge 188

3. Priority and the floating charge 190

4. The limited role of the floating charge 194

5. An old problem 202

6. The harm done by administrative receivership 208

a. Business or company: What should be rescued? 210

b. How good was administrative receivership even in rescuing businesses? 212

c. The direct costs of receivership 214

d. Receiver opportunism 217

e. A market solution? 217

7. Why the floating charge must now be abolished 219

8. Conclusion 223

7. Administration 225

1. Introduction 225

2. Motivation and rationale for the introduction of the new procedure 226

3. Entry into administration 230

4. The administrator's duty to act rationally 233

a. The statutory hierarchy 234

b. The administrator as fiduciary 235

c. Providing content to the duty to act rationally 237

d. Rationality requirements in public and private law 241

5. Choosing between objectives 245

6. Creditor voting 251

a. The position of unsecured creditors 251

b. Balancing the interests of secured creditors 252

c. Relationship between creditor voting and the administrator's duties 254

7. The administrator's incentives and challenges to his decisions 256

8. Conclusion 260

8. The Wrongful Trading Provisions 263

1. Introduction 263

2. What is wrong with redistribution? 266

3. Are the wrongful trading provisions redistributive? 269

4. Motivation costs and the wrongful trading provisions 273

5. Predictions and observations 284

a. The influence of the market for managerial labour 285

b. The role of secured credit 293

6. Perverse incentives 295

a. The punishment effect 296

b. The delay effect 299

c. The haste effect 301

7. Conclusion 302

9. Adjusting Transactions Involving Distressed Companies 305

1. Introduction 305

2. Rationale 306

a. Initial clue 306

b. The group meant to be protected 308

c. The law's general strategy 310

3. Transactions at an undervalue 312

a. Understanding what constitutes a 'transaction': 'Mutuality' 312

b. Understanding what constitutes a 'transaction': Linked events 318

c. Expostfacto events 323

4. Voidable preferences 326

a. The aims of preference law and creditor equality 326

b. Designing a defensible preference law 332

5. Conclusion 338

Bibliography 341

Index 353

이용현황보기

Corporate insolvency law : theory and application 이용현황 표 - 등록번호, 청구기호, 권별정보, 자료실, 이용여부로 구성 되어있습니다.
등록번호 청구기호 권별정보 자료실 이용여부
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알라딘제공
This volume constructs a detailed theory for the analysis and justification of corporate insolvency law using philosophical and economic tools. This theory is then deployed in an examination of the relevant statutes and leading authorities. The theory is also used to addresses important doctrinal questions which have not yet received judicial attention.

This volume analyses corporate insolvency law as a coherent whole, stemming from common fundamental principles and amenable to being justified or criticised on that basis. The author explains why consistency of principle must be sought and how it might be found in the relevant statutory and case law. He then constructs an egalitarian theory for the analysis of corporate insolvency law, based on the premise that all the parties affected by this law are to be treatedas equals. He argues that this theory can reconcile the dictates of fairness with the demands of economic efficiency.The theory is employed to analyse some of the most important aspects of insolvency law. Why should the individualistic method of enforcing claims against solvent companies give way to a collective method during insolvency? Why are there different formal mechanisms for dealing with troubled companies? What role does the pari passu principle play in the distribution of an insolvent company s assets? The controversial issues of whether and when secured creditors should be accorded priority overothers receive detailed consideration. The functional role of the floating charge and its relationship with receivership are also analysed in this context. The many questions relating to the operation of the new administration procedure introduced by the Enterprise Act 2002 are considered in the lightof principle. The book also analyses the role of the wrongful trading provisions. It examines, finally, why insolvency law objects to certain transactions at an undervalue and those having a preferential effect.This volume aims to enhance understanding of this important branch of the law, and to suggest principled solutions to problems which have not yet received judicial attention.

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