PER: 2008 Volume 11 No 1
http://hdl.handle.net/10394/1764
2024-03-19T12:31:00ZCrossborder jurisdiction and assistance in insolvency: The position in Malaysia and Singapore
http://hdl.handle.net/10394/1770
Crossborder jurisdiction and assistance in insolvency: The position in Malaysia and Singapore
Omar, P. J
Malaysia and Singapore are members of the common law family and have 'inherited' their company and insolvency law from models in use in the United Kingdom with influences from Australia. It is the purpose of this article to outline the law in relation to cross-border insolvency, particularly the winding up of foreign companies, the co-operation provisions in bankruptcy and insolvency as well as more recent moves to redevelop insolvency through UNCITRAL and Asian Development Bank initiatives.
2008-01-01T00:00:00ZThe Righteous Bankruptcy Trustee: The influence of creditors on the appointment of a bankruptcy trustee from a Netherlands perspective.
http://hdl.handle.net/10394/1769
The Righteous Bankruptcy Trustee: The influence of creditors on the appointment of a bankruptcy trustee from a Netherlands perspective.
Vriesendorp, R D
In this contribution the topic of integrity of the bankruptcy trustee is being dealt with from a Dutch perspective, more specifically from the point of view of the creditors and their (lack of) influence on the appointment of the trustee. In this respect various questions are addressed: what does integrity or righteousness mean in the context of the appointment of a bankruptcy trustee and what do we mean when we are talking about a righteous trustee; why do we need a righteous trustee; and how do we reach our goal? After investigating the existing safeguards to prevent non-righteous persons to be enrolled or appointed as trustee, the position of the creditors is dealt with, especially with respect to their influence on the appointment of the trustee. A quick glance on various neighbouring jurisdictions, demonstrates that not much has been regulated in the Netherlands. As to the question whether or not more creditor involvement in the appointment process is required or desired, it is argued that there is no need to increase their influence because it is not to be expected that such influence will enhance the integrity of bankruptcy trustees.
2008-01-01T00:00:00ZViewing the proposed South African Business Rescue Provisions from an Australian Perspective
http://hdl.handle.net/10394/1768
Viewing the proposed South African Business Rescue Provisions from an Australian Perspective
Anderson, C
This article makes some comparisons between the Australian corporate rescue provisions and those proposed to be adopted in South Africa in the Companies Bill 2007. By so doing it may assist in the debate in South Africa over how the legislation is framed as the experience in Australia may be useful as an indicator of issues to be considered. One of the findings of the comparison is that the aims of the Australian legislation and that proposed in South Africa are almost identical. The article identifies a clear concern in the South African proposals with the position of employees which is not apparent in Australia. On the other hand there appears to be less concern in South Africa with the position of secured creditors than is evident in the Australian provisions. The article also notes that the South African proposals do not divide the procedure clearly into a decision-making stage and the period whilst the company is operating under the rescue plan. The Australian provisions provide for a clear break between a period where the creditors have yet to make a choice about the company’s future and the period once a plan (or deed of company arrangement) has been adopted. The article also finds that the South African model of rescue as proposed does cover many similar areas as identified in the Australian legislation. It therefore argues that there are sufficient similarities to suggest that much will be common in the experience if they are adopted into the legislation.
2008-01-01T00:00:00ZCross-Border Insolvency Law in Europe: Present Status and Future Prospects
http://hdl.handle.net/10394/1767
Cross-Border Insolvency Law in Europe: Present Status and Future Prospects
Wessels, B
In May 2007 the European countries celebrated the first lustrum of the EU Insolvency Regulation (1346/2000). This article describes where Europe stands with its model which is based on well known theories of private international law for dealing with cross-border insolvencies. The EU Insolvency Regulation provides for a national court to exercise international jurisdiction to open insolvency proceedings. The basis for international jurisdiction is the debtor’s “centre of main interests” or COMI. The two most important cases decided by the European Court of Justice (17 January 2006 Staubitz Schreiber and 2 May 2006 Eurofood) are discussed. The article further analyses the regulation’s legal concept and its procedural context and explains that 'financial institutions' are not covered by the Insolvency Regulation, but by separate directives (2001/17; 2001/24). After having taken stock several suggestions are submitted for improvement of the system of cross-border insolvency in Europe.
2008-01-01T00:00:00Z