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By Gerald Mccormack

This booklet deals an exceptional and targeted comparative critique of Anglo-American company financial disaster legislation. It demanding situations the traditional characterisation that US legislations within the sphere of company financial ruin is 'pro-debtor' and united kingdom legislations is 'pro-creditor', and means that the conventional thesis is, at top, a most likely deceptive over-simplification. Gerard McCormack bargains the belief that there's sensible convergence in perform, whereas acknowledging that company rescue, as targeted from company rescue, nonetheless performs a bigger position within the US. the point of interest is on company restructurings with in-depth scrutiny of bankruptcy eleven of the USA financial ruin Code and the united kingdom company Act, and gives different comparative oversights. Integrating theoretical and useful insights, this publication could be of significant curiosity to teachers and practitioners, and likewise to policymakers within the DTI, Insolvency provider and regulatory our bodies.

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78 See Roy Goode Principles of Corporate Insolvency Law (London, Thomson, 3rd ed, 2005) at p 47. 79 See Goode, ibid at p 46. 80 See John D Ayer (2004) 12 American Bankruptcy Institute Law Review 101. 81 But see however, D Webb ‘An Economic Evaluation of Insolvency Procedures in the United Kingdom: Does the 1986 Insolvency Act Satisfy the Creditors’ Bargain’ (1991) 43 Oxford Economic Papers 139. Introduction 25 THE PROCEDURAL THEORY OF INSOLVENCY AND CORPORATE RESCUE LAW The creditors’ bargain theory undoubtedly has its critics but, nevertheless, the underlying idea of respecting pre-insolvency entitlements has gained renewed vigour in the form of procedure theory.

And the assumptions themselves are garbed in neutral terms, lending an aura of fairness to the development of policy. not determine the claimants’ substantive rights and entitlements, but rather preserve the respective values of the parties’ rights at the commencement of a case. Instead of dividing the unallocated GCS among classes of claimants, bankruptcy should provide unbiased procedural rules allowing the parties to negotiate on level ground. The claimants will distribute among themselves the surplus created in reorganization, that is, the GCS.

106 Many of the social costs incurred in the creation of a corporate entity have been borne by employees, communities, suppliers, customers and others. When a company fails, then prima facie those parties are left with the costs. The team production theory suggests that those costs which have been incurred by anyone in reasonable reliance on the team production arrangements should be internalised by the company. 107 For example, the US Chapter 11 is based on the concept of debtor-inpossession with the board of directors remaining in control of the company’s affairs during the reorganisation process.

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