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fbtwitterlinkedinvimeoflicker grey 14rssslideshare1
Parry, R; Omar, PJ (2015)
Publisher: INSOL Europe
Languages: English
Types: Book
Subjects:
  • The results below are discovered through our pilot algorithms. Let us know how we are doing!

    • 4 A. Ranney-Marinelli, “Overview of Chapter 15 Ancillary and Other Cross-Border Cases” (2008) 82 American Bankruptcy Law Journal 269, at 303: “[A] third approach is to interpret §1509(f) broadly, permitting many types of relief to fall under the rubric of 'collecting or recovering a claim which is property of the debtor,” so that Chapter 15 recognition is not required.”; D. Stromes, “The Extraterritorial Reach of the Bankruptcy Code's Automatic Stay: Theory vs. Practice” (2007) 33 Brooklyn Journal of International Law 277; J. Pottow, “The Myth (and Realities) of Forum Shopping in Transnational Insolvency” (2007) 32 Brooklyn Journal of International Law 785.
    • 6 Ofcfiial Receiver v. Eichler [2007] BPIR 1636, at [14], [16] (Ch. D.) (noting the right of a debtor to change his centre of main interests); Shierson v. Vlieland-Boddy [2005] EWCA Civ 974, at [55] (Ct. of App. Civ. Div.).
    • 10 Lernout & Hauspie Speech Products N.V. v. Stonington Partners, Inc., 268 B.R. 395 (D. Del. 2001), rev'd, 310 F.3d 118 (3d Cir. 2002), on remand In re Lernout & Hauspie Speech Products N.V., 301 B.R. 651 (Bankr. D. Del. 2003). See J. Westbrook, “Universalism and Choice of Law” (2005) 23 Penn State International Law Review 625 (discussing Lernout at length); J. Westbrook, “International Judicial Negotiation” (2003) 38 Texas International Law Journal 567 (referring to Lernout in footnotes); J. Pottow, “Greed and Pride in International Bankruptcy: The Problems of and Proposed Solutions to 'Local Interests'” (2006) 104 Michigan Law Review 1899 (discussing Lernout); L. Salaafi, “Cross-Border Insolvency in the United States and its Application to Multinational Corporate Groups” (2006) 21 Connecticut Journal of International Law 297, at 332 (discussing Lernout); K. Beckering, “United States Cross-Border Corporate Insolvency: The Impact of Chapter 15 on Comity and the New Legal Environment” (2008) 14 Law and Business Review of America 281, at 308-309 (referring to Lernout in footnote); L. LoPucki, “Global and Out of Control?” (2005) 79 American Bankruptcy Law Journal 79, at 92 (discussing Lernout); J. Pottow, “Procedural Incrementalism: A Model for International Bankruptcy” (2005) 45 Virginia Journal of International Law 935 (2005) (discussing Lernout in footnotes).
    • 11 As to choice of labour law, for example, see J. Westbrook, “Multinational Financial Distress: The Last Hurrah of Territorialism” (2006) 41 Texas International Law Journal 321, reviewing L. LoPucki, Courting Failure: How Competition for Big Cases is Corrupting the Bankruptcy Courts (2005, University of Michigan Press, Ann Arbor MI).
    • 12 For example, in the COMI context, I have argued that “too exclusive a focus on predictability is…a mistake, especially if it leads to a rule that would choose legal 'havens' as COMIs.” J. Westbrook, “Locating the Eye of the Financial Storm” (2007) 32 Brooklyn Journal of International Law 1019, at 1028.
    • 20 American Law Institute, Principles of Cooperation among the NAFTA Countries (2003, ALI, Philadelphia PA), at 86-88 (“Principles”).
    • 24 See generally, S. Johnston, “Why U.S. Courts Should Deny or Severely Condition Recognition to Schemes of Arrangement for Solvent Insurance Companies” (2007) 16 Journal of Bankruptcy Law and Practice 6, Art. 2, 1.
    • 25 See Lion City Run-Off Private Limited, Case No. 06-B-10461 (Bankr. S.D.N.Y. 13 April 2006); In re Gordian Run-Off (UK) Ltd., Case No. 06-11563 (Bankr. S.D.N.Y. 28 August 2006); In re Europaische RuckversicherungsGesellschaft in Zurich (European Reinsurance Company of Zurich), Case No. 06-13061 (Bankr. S.D.N.Y. 22 January 2007); In re Lloyd, No. 05-60100, 2005 Bankr. LEXIS 2794 (Bankr. S.D.N.Y. 7 December 2005).
    • 27 In re Cenargo International, PLC, 294 B.R. 571 (Bankr. S.D.N.Y 2003).
    • 28 See also In re Yukos Oil Co., 321 B.R. 396 (Bankr. S.D.Tex. 2005), which upheld Cenargo-like technical jurisdiction, but was dismissed on the grounds of prudence rather than traditional bases likeforum non conveniens or abstention.
    • 29 In re Aerovias Nacionales de Colombia S.A. (In re Avianca), 303 B.R. 1 (Bankr. S.D.N.Y. 2003). My analysis of this case rfist appeared in M. Monti et al. (eds), Economic Law and Justice in Times of Globalisation: Festschrift for Carl Baudenbacher (2007, Nomos Verlag, Baden-Baden), at 777.
    • 30 In re Bear Stearns High-Grade Structured Credit Strategies Master Fund, Ltd., 374 B.R. 122 (Bankr. S.D.N.Y. 2007), aff'd 389 B.R. 385 (S.D.N.Y. 2008); In re Basis Yield Alpha Fund (Master), 381 B.R. 37 (S.D.N.Y. 2007); In re Tri-Continental Exchange Ltd., 349 B.R. 627 (Bankr. E.D. Cal. 2006).
    • 31 Bankruptcy Code, §1521(c).
    • 3 Queensland, New South Wales, Victoria, Tasmania, South Australia and Western Australia. There are also two internal Territories: the Australian Capital Territory, the seat of the national capital Canberra, and the Northern Territory.
    • 4 Section 51(xvii), Australian Constitution. Australian statutes are available at: www.austlii.edu.au.
    • 5 Justice R. French, “Federal Jurisdiction - An Insolvency Practitioner's Guide to the Labyrinth” (2000) 8 Insolvency Law Journal 128, at 129.
    • 12 In September 2014, ASIC and AFSA signed a new Memorandum of Understanding (replacing a 2002 agreement) to facilitate liaison, cooperation, assistance and the exchange of information between the agencies in performing their regulatory functions, for which see: http://www.asic.gov.au/asic/pdflib.nsf/LookupByFileName/AFSAMOU-published-1-October-2014.pdf/$lfie/AFSA-MOU-published-1-October-2014.pdf.
    • 13 See: http://www.insolvencyreg.org/.
    • 14 Until 1996, they were in different sections (ITSA and Companies and Business Law Section) within the Attorney General's Department. However, the Companies and Business Law Section was moved to Treasury following the 1996 election and a change of government.
    • 15 In making its report, the ALRC was to have regard to “the community's interest in the nfiancial rehabilitation of small but honest debtors, and the need to ensure that creditors have an effective means of enforcing the payment of debts due to them.” (Insolvency: The Regular Payment of Debts [1977] ALRC 6, at v).
    • 16 See: http://www.alrc.gov.au/report-6.
    • 17 David Kelly was a foundation full time member of the Australian Law Reform Commission 1976-1980 and a Professor of Law at University of Adelaide 1980-1983.
    • 18 Professor Colin Howard (University of Melbourne); Anthony Moore (University of Adelaide); John Willis (La Trobe University).
    • 19 On Professor Countryman's support for the rights of the debtor, see: http://www.law.harvard.edu/news/bulletin/ backissues/fall99/article6.html.
    • 20 Professor Bob Baxt (Monash University); Bruce Kercher (Macquarie University); C.W. O'Hare (Monash University); J. Neville Turner (Monash University).
    • 21 Professor William Neilson (University of Victoria, British Columbia).
    • 22 ALRC Report 6 concluded that the procedures provided under the Bankruptcy Act 1966 (Cth) for rearranging of debts were costly, cumbersome and inappropriate for the needs of non-business debtors. See: http://www.alrc. gov.au/inquiries/insolvency-and-debt-recovery.
    • 23 ALRC Report 36, Chapter 1 Introduction, at [2].
    • 24 ALRC Report 6 recommended an automatic six-month discharge for non-business debtors unless creditors object. The 1980 amendments provided that a bankrupt should be automatically discharged from bankruptcy after three years although it also introduced procedures for objecting to the discharge.
    • 25 For example, a system for the regular payment of debts for non-business debtors: “Part IX Debt Agreements”, was introduced in 1997.
    • 26 See: http://www.alrc.gov.au/report-36.
    • 27 Ron Harmer was also appointed a Law Reform Commissioner during this period.
    • 28 From Australia, A.J. Duggan (University of Melbourne, now of University of Toronto); Bruce Kercher; A.P. Moore (University of Melbourne) and J.E. Willis (La Trobe University). From overseas, Dr. C.G. Veljanovski (Centre for Socio-Legal Studies, Oxford University).
    • 29 Dr. T.C. Puckett (La Trobe University).
    • 30 A.J. Duggan and Bruce Kercher.
    • 31 J. Willis in Melbourne. Ron Harmer also made oral submissions at the public hearings in Perth.
    • 32 These included Professor Maureen Brunt and Alan Fels, competition lawyers (Monash University); Martin Ryan (Department of Social Work, La Trobe University).
    • 33 Professor C.R.B. Dunlop (a Canadian specialist in creditor and debtor law) and Professor R.M. Goode OBE LLD (an English specialist in corporate and insolvency law).
    • 34 Professor Fels became chairman of the Australian Competition and Consumer Commission (1995-2003).
    • 35 ALRC Report 36, above note 23, at [115].
    • 36 See: http://www.alrc.gov.au/report-45.
    • 37 Ron Harmer was an internationally recognised insolvency expert who worked with many multilateral organisations, including INSOL International, the Asian Development Bank, the World Bank, the European Bank for Reconstruction and Development and UNCITRAL on improving the design of insolvency systems.
    • 38 Richard Fisher AM was then a partner at Dawson Waldron and is now General Counsel and an Adjunct Professor, University of Sydney.
    • 39 Professor Robert Baxt, who at the time was Chairman, Trade Practices Commission; Professor Harold Ford (University of Melbourne), Chairman of the Companies and Securities Law Review Committee, which was established by the Ministerial Council for Companies and Securities pursuant to the inter-governmental agreement between the Commonwealth and the States to assist the Ministerial Council by carrying out research into, and advising on, law reform relating to companies and the regulation of the securities industry; and Professor James O'Donovan (University of Western Australia).
    • 40 Professor Tom Valentine (Macquarie University).
    • 41 These included submissions by Professor Ford; A.P. Moore; Dr. O'Donovan.
    • 42 The Insolvency (Tax Priorities) Legislation Amendment Act 1993 (Cth) amended the Income Tax Assessment Act 1936 (Cth), the Bankruptcy Act 1966 (Cth) and the Corporations Law.
    • 43 For example, see C. Brown et al., “The Certainty of Tax in Insolvency: Where does the ATO tfi?” (2011) 19(2) Insolvency Law Journal 108.
    • 59 The Treasury, Strengthening APRA's Crisis Management Powers (Consultation Paper, 2012), a copy of which is available at: http://www.treasury.gov.au/ConsultationsandReviews/Consultations/2012/APRA.
    • 61 International Monetary Fund, Australia: Financial System Stability Assessment (IMF Country Report No 12/308, 2012), at [51], a copy of which is available at: http://www.apra.gov.au.
    • 62 Submissions were made by academics on a broad range of the issues, for example by Professor Justin O'Brien; Dr. George Gilligan; Professor Ross Buckley; Ken Ooi; Professor Kingsford-Smith (University of New South Wales); Associate Professor Paul Latimer (Monash University) and Phillip Maume (Technische Universität München, Germany). The submission by Dr. Colin Anderson, Cath Brown and the present author (Commercial & Property Law Research Centre, Queensland University of Technology) addressed insolvency issues.
    • 63 The Financial System Inquiry Final Report, at 265 recommended to government to “Consult on possible amendments to the external administration regime to provide additional flexibility for businesses in financial difcfiulty.” See: http://fsi.gov.au/publications/nfial-report/.
    • 64 See: http://www.camac.gov.au/CAMAC/camac.nsf. Its most recent report was on report on crowd sourced equity funding in May 2014.
    • 65 See: http://www.budget.gov.au/2014-15/content/bp2/html/bp2_expense-07.htm. The committee's advisory function is to be merged into Treasury.
    • 66 The Law Council of Australia's letter in June 2014 to the relevant Minister expressing concern at the proposal can be found at: http://www.lawcouncil.asn.au/lawcouncil/images/LCA-PDF/docs-2800-2899/2857_-_ Commonwealth_budget_proposal_to_abolish_corporations_and_markets_law_reform_body.pdf.
    • 67 See: http://www.treasury.gov.au/ConsultationsandReviews/Consultations/2014/CAMAC.
    • 68 Such as the “Members' Schemes of Arrangement Report” (2009).
    • 80 See: http://www.aph.gov.au/Parliamentary_Business/Committees/Senate/Education_and_Employment/ Fair_Entitlements.
    • 81 Nine witnesses appeared representing the Australian Industry Group and Australian Chamber of Commerce and Industry (2) (employers); the Australian Council of Trade Unions and Textile Clothing & Footwear Union of Australia (4) (employees); and the Department of Employment (3) (government).
    • 82 S. Whelan, L. Zwier and R. Campo.
    • 83 Submission 11 by Slater & Gordon dated 15 September 2014 referred to research by Mark Wellard (Queensland University of Technology); David Morrison (University of Queensland); and Helen Anderson (University of Melbourne): http://www.aph.gov.au/Parliamentary_Business/Committees/Senate/Education_and_Employment/ Fair_Entitlements/Submissions.
    • 84 At the time of writing, the Bill was still before the Senate.
    • 85 See: http://www.aph.gov.au/Parliamentary_Business/Committees/Senate/Economics/Completed_ inquiries/2008-10/liquidators_09/index.
    • 86 Written submissions by Jeffrey Fitzpatrick and Vivienne Brand (Flinders University); Christopher Symes (University of Adelaide); Colin Anderson (Queensland University of Technology); and David Morrison (University of Queensland).
    • 87 Public hearings at Adelaide (Dr. Vivienne Brand, Associate Professors David Brown and Chris Symes); Newcastle (Professor Scott Holmes); and Canberra (Associate Professors Colin Anderson and David Morrison).
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