By Professor Ian Fletcher
Publisher: Oxford University Press
Price: £75
Professor Fletcher’s admirable work falls into two parts. In the first, a description of English insolvency law relating to cross-border insolvency, the focus is on two pairs of antithetical principles identified by Professor Fletcher. These come into play when national systems of law are confronted by insolvency cases containing international elements.
The first pair are labelled ‘unity of bankruptcy’ and ‘plurality’, which is that while many considerations point to insolvencies being administered as a unified process, such an administration may be unfair to those who have dealt with the insolvent in different jurisdictions with different systems of law. The second pair of principles he labels ‘universality of bankruptcy’, contrasting with ‘territoriality’.
The application of these four principles in any legal system, he argues, will influence the way in which, in a cross-border insolvency, the system gives effect to the ideals of collectivity, equality of treatment for all creditors, and respect for previously acquired rights. These ideals are those identified by Professor Fletcher as providing the most significant unifying theme within the diversity of domestic insolvency law.
The professor’s thesis is that it is possible that a workable compromise can be devised through “a pragmatic combination of elements from all four” of these principles. This compromise he characterises as the ‘Internationalist Principle’.
Concerning English insolvency law the professor’s conclusion is that, with the exception of a couple of notable cases, the approach has been imbued with a spirit of positive intent to facilitate international co-operation between the different jurisdictions that may be concerned in a case.
The second part of the work is concerned with international co-operation between states. The discussion here impresses on the reader the amount of fruitless effort that over the years has gone into the formulation of transnational systems for dealing even modestly with aspects of cross-border insolvencies.
The reader will need little convincing of two of Professor Fletcher’s conclusions. First, global harmonisation of insolvency procedures is desirable. Second, significant regional, let alone global, treaties at present have little chance of being implemented.
The professor’s third conclusion is that the most promising prospect for global harmonisation will be if individual states can be persuaded to legislate by reference to the Draft Model Legislative Provisions on Cross-Border Insolvency, adopted on 30 May 1997 by the United Nations Commission on International Trade Law.
The book should make stimulating reading for anyone, whether practitioner or academic, with an interest in international insolvency issues – which are increasingly prominent with the globalisation of all aspects of human activity
George Bompas QC is a barrister at
4 Stone Buildings
