Party Autonomy and Third-Party Protection in Insolvency Law

In October 2018, the INSOL Europe Academic Forum Annual Conference was held in the ancient seat of democracy, Athens, Greece. Under the protective gaze of Athena, its eponymous protector and goddess of war and wisdom, insolvency academics throughout Europe and indeed the world gathered to discuss party autonomy and third-party protection in insolvency law. Papers were given that explored the links between the dominant theme of insolvency law and related areas of contract law, property law, and corporate law. It was a special occasion, marking the fifteen-year anniversary of the Academic Forum. The purpose of this text, which consists of papers delivered at the INSOL Europe Academic Forum Annual Conference on 3 and 4 October 2018, is to showcase a number of perspectives on European wide aspects of party autonomy and third-party protection in insolvency law. Within the overarching theme of the conference, several more focussed themes were explored, including contract law with a focus on ipso facto clauses, insolvency and secured creditors, transaction avoidance laws, and a session to explore new research in insolvency provided by members of Younger Academics’ Network of Insolvency Law (YANIL). Contributions from the conference in this book range from a Chinese comparison on contractual opt-outs from court-driven insolvency; the relationship between essential supply contracts, ipso facto and termination clauses in England and Wales; and the law reform experience in Australia and the exceptions that serve to undermine an effective prohibition of ipso facto clauses. In addition, discussions revolved around the effectiveness of retention of title clauses; accelerated extrajudicial collateral enforcement of non-performing loans; the impact of the second chance approach to secured creditors’ rights; and a criticism of the safe harbour and immunity provisions of the 2016 Draft Directive. The conference also hosted a special panel for YANIL presenters. This book therefore also includes a series of papers from younger academics cover the influences that can be drawn from the development of corporate governance principles in insolvency procedures; aspects of legal transplants in Cyprus and the options faced by creditors in developing jurisdictions; and an examination of financial restructurings in the context of the COMI debate. In addition, in the context of preventive restructuring there are papers discussing the scheme of arrangement in Singapore and limitations to the use of the absolute priority rule in a number of jurisdictions. The final chapter of this book showcases the arguments for and against the harmonisation of insolvency law rules, which provided the foundation for the practitioners’ forum that rounded out the conference in Athens. The papers contained herein are therefore truly cutting edge and will increase the awareness of party autonomy and third-party protection in insolvency law. Submissions for this collection have come from prominent academics, doctoral students and other researchers, practitioners and policy makers in the field, representing numerous jurisdictions including common law, civil law, and mixed systems within Europe and even beyond. As such, the contents of the research and analyses are of extremely high quality and offer thought-provoking and at times innovative insights into the subject matter at hand. It is hoped that this will render the contributions here as well as the further references that they contain of great value for researchers in the field of insolvency law. In summary, I would like to express my appreciation to every contributor who has given their time and intellectual skills to making this project a rich and diverse discourse on the issue party autonomy and third-party protection in insolvency law. I must also give my profound thanks to Technical Research Co-Ordinator of INSOL Europe Paul Omar, administrative staff members Caroline Taylor and Wendy Cooper, together with Technical Officer Emmanuelle Inacio, and our Publisher, Paul Newson, for his brilliant design and publishing expertise. If not otherwise noted by the contributors, the law is as stated as at 13 May 2019