Prof Dr Bork is currently working on a book on “Principles of Cross-Border Insolvency Law”. His thesis is that cross-border insolvency rules of all kinds (e.g. European Insolvency Regulation, UNCITRAL Model Law, ALI Principles for the NAFTA States, national laws such as Chapter 15 US Bankruptcy Code or Sch 1 Cross-Border Insolvency Regulation 2006) are founded on, and can be traced back to, basic values, and aim to pursue and enforce such principles.
Furthermore, several principles can be identified, distinguished and sorted into three groups:
- conflict of laws principles (e.g. unity, universality, equality, mutual trust, cooperation and communication, subsidiarity, proportionality);
- procedural principles (e.g. efficiency, transparency, predictability, procedural justice, priority); and
- substantive principles (e.g. equal treatment of creditors, optimal realisation of the debtor’s assets, debtor protection, protection of trust [for secured creditors or contractual partners], social protection [for employees or tenants]).
If this thesis is correct, the outcome of the research might be helpful for both deciding cases and shaping cross-border insolvency law by using a principle-oriented approach. Legislators as well as courts could be offered some new substantive and methodological support in making decisions, for example, where the treatment of secured creditors, support for foreign insolvency practitioners or even harmonisation of cross-border insolvency laws is at stake.
Professor Sir Roy Goode will be the discussant at this event.