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E-raamat: Insolvency within Multinational Enterprise Groups [Oxford Scholarship Online e-raamatud]

(Lecturer at the University of Nottingham)
  • Formaat: 390 pages
  • Ilmumisaeg: 21-May-2009
  • Kirjastus: Oxford University Press
  • ISBN-13: 9780199544721
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  • Oxford Scholarship Online e-raamatud
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Insolvency within Multinational Enterprise GroupsSuurem pilt
  • Formaat: 390 pages
  • Ilmumisaeg: 21-May-2009
  • Kirjastus: Oxford University Press
  • ISBN-13: 9780199544721
Teised raamatud teemal:
Wiley OnlineRohkem infot Oxford Scholarship Online e-raamatute kohta
Raamatu kodulehekülg: http://www.oxfordscholarship.com/view/10.1093/acprof:oso/9780199544721.001.0001/acprof-9780199544721
Insolvency within multinational enterprise groups (MEGs) raises complex issues due to the foreign elements of the case and the multiplicity of debtors. The key problem is deciding to what extent and in which ways should there be 'linkage' between the entities in the course of their insolvency in order to promote insolvency goals. Historically the issue has been neglected both in national and international regimes. However, new initiatives are currently developing.

In order to deal with this issue the work provides a theoretical framework, suggesting a balance between Entity-Enterprise issues (drawn from company law theory and the problem of enterprise groups) and Universality-Territoriality issues (drawn from cross-border insolvency and conflict of laws theory). This is further assisted by a taxonomy describing prototypical scenarios of MEGs and their insolvency.

The theoretical framework and prototypical scenarios are the basis for critical analyses of various tools for 'linking' between different components of MEGs in the course of their insolvency and the degree to which they fit with a series of insolvency goals.

Thus, the book suggests a comprehensive approach for dealing with insolvency within MEGs which can be used not only within the current cross-border insolvency frameworks (e.g., UNCITRAL Model Law, EC Regulation) but also as a definitive guideline for future reform.

It argues that a global group-wide perspective for MEG insolvencies can be desirable if its application is limited to appropriate types of cases where unduly defeat of entity law and territoriality concerns can be minimized.

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Acknowledgements xv
Abbreviations xvii
Table of Cases
xix
Table of Statutes and Other Instruments
xxv
Introduction 1(8)
Part I The Context Of Insolvency Within Multinational Enterprise Groups---The Phenomenon And Key Problems
The Phenomenon of the Multinational Enterprise Group
9(23)
Introduction
9(1)
The MEG as a Key Player in World Business
10(5)
Introduction
10(1)
The emergence of corporate groups
10(1)
The phenomenon of the multinational enterprise
11(2)
The use of affiliates by multinational enterprises
13(1)
Flexibility in organizational structures of multinational enterprises
14(1)
MEGs---a widespread phenomenon
14(1)
What Constitutes a MEG
15(15)
Introduction
15(1)
Equity-based hierarchical multinational corporate groups
16(3)
Decentralized and heterarchical patterns
19(1)
Multinational businesses comprised of entities linked by contract
20(1)
Supranational entities
21(1)
In favour of a wide meaning of a multinational enterprise group
22(1)
Considering the different types of groups and the range of different levels of connections among the entities
22(3)
The international element
25(1)
Legal systems' approaches to the definition of groups and multinational enterprises
26(3)
Addressing the problem of definition in future reforms
29(1)
Conclusion
30(2)
`To Link or not to Link?'The Problem of the Multinational Enterprise Group Business Structure
32(30)
Introduction
32(1)
One Enterprise or Several Entities?
33(5)
A gap between commercial realities and legal infrastructure
33(1)
The enterprise group problem arising in different areas of the law with further complexities in the international group case
34(3)
Summary
37(1)
The Theoretical Debate
38(13)
Entity law versus enterprise principles
38(3)
The economic essence of the separate entity (and its limitations)
41(1)
The merits of corporate separateness in the single company scenario---reducing transaction costs
41(1)
The weaknesses of the economic rationales of corporate separateness in the group context
42(2)
Segregation of groups of assets between the entities comprising the group
44(1)
The risk associated with limited liability
44(3)
Distinguishing between `levels of breaches' of the separateness between MEG entities and the role of enterprise law
47(2)
The entity---enterprise law dichotomy and state sovereignty
49(2)
Legal Systems' Treatment of Enterprise Groups---Application of Entity or Enterprise Principles?
51(9)
Introduction
51(1)
Inclination towards allowing recognition of the group where limited liability is not at stake
52(2)
The approach to limited liability in the group context
54(2)
Legal regimes with more explicit `laws of groups'
56(1)
Developments on EC level
57(1)
An entity approach in regard to directors' duties, and the possibility of dealing with group liability from the insolvency angle
57(1)
Further ambiguity as to legal regimes' approach to groups in the context of insolvency
58(1)
Inroads into entity law with respect to jurisdiction
59(1)
Summary
60(1)
`To Link or not to Link' Between MEG Members in the Context of Insolvency---That is the Question!
60(2)
Global Frameworks or State-based Insolvencies---the Problem of Cross-border Insolvency
62(43)
Introduction
62(1)
The Essence and Significance of the Cross-border Insolvency Problem
63(2)
The Theoretical Debate
65(16)
Introduction
65(1)
The main schools of thought---pros and cons
65(1)
Universalism
65(3)
Modified universalism
68(3)
Territorialism (and cooperative territorialism)
71(3)
Other universal-based approaches
74(2)
Contractualism
76(4)
Summary: universality-territoriality: a balanced scale
80(1)
Universalism-Territorialism in Practice: Legal Systems' Treatment of Cross-border Insolvency
81(19)
Harmonization of insolvency systems---the development of global insolvency norms with flexibility in the lawmaking process
81(4)
Unifying private international law aspects of insolvency and cooperating in international insolvencies---approaches in practice
85(1)
National approaches, courts, and party-led intiatives
85(4)
The EC Regulation on Insolvency Prceedings
89(5)
The UNCITRAL Model Law on Cross-Border Insolvency
94(3)
The ALI Principles of Cooperation
97(3)
Universality-Territoriality and the MEG
100(5)
Part II Guiding Objectives And Typical Scenarios
Insolvency Goals in Legal Systems
105(22)
Introduction
105(1)
Key Objectives and Tasks of Insolvency Law
105(22)
Can shared objectives and tasks be identified?
105(2)
Fair and efficient insolvency regimes---the key values and possible ways to achieve them
107(1)
Wealth maximization and costs reduction
107(3)
Respecting pre-insolvency entitlements and providing adequate incentives and measures to enhance ex ante efficiency
110(3)
Widening the goals of insolvency (beyond wealth maximization and preserving relative entitlements)
113(4)
Balancing between goals
117(1)
Fairness in distribution
117(2)
Summary
119(1)
A broad agreement on the key values and tasks for effective insolvency regimes
119(1)
An eclectic approach
119(1)
Wealth maximization and respect for pre-insolvency entitlements as key goals
120(1)
Acknowledging the wider goals of insolvency law
121(2)
Additional tasks of insolvency law which support equitable distribution
123(1)
Creditors' participation, impartiality, and expertise of insolvency representatives
124(1)
Summary
124(1)
The consideration of the objectives in subsequent chapters
125(2)
Prototypical Scenarios of Insolvency within Multinational Enterprise Groups
127(24)
Introduction
127(1)
Key Factors Regarding the Structure, Operation, and Default of MEGs with Relevance to Insolvency within such Enterprises
128(1)
Classifying each Factor into Main Representative Scenarios
129(7)
The insolvency scenarios
130(1)
Degree of integration/interdependence
130(3)
Central control, location, and function
133(2)
Portraying a concise picture of insolvency within multinational enterprise groups
135(1)
Defining `Prototypes'
136(10)
Summary
146(5)
Part III The Quest For Appropriate Solutions For Insolvency Within Multinational Enterprise Groups
Preservation of the Estate, Maximization of Value, and Facilitation of Rescues
151(86)
Introduction
151(2)
A Global Unified Approach to `Business Integrated' MEGs in Distress
153(62)
Benefiting from package sales and going concern surpluses
153(1)
Why and when `linking' between the group entities across borders is beneficial
153(6)
Mechanisms for group-wide insolvencies
159(6)
Procedural consolidation and entity law
165(1)
The need for global measures for `business integrated' MEGs in distress
166(3)
Coordination and cooperation, access, recognition, and relief in regard to entities of the business integrated MEG in distress
169(6)
Stronger measures = greater prospects
175(1)
The concept of centralization of insolvency proceedings against MEG members
175(1)
Current measures for centralization of proceedings against single debtors
176(1)
Enabling centralization in the case of the MEG insolvency
177(2)
Centralization of MEG insolvency proceedings in practice
179(5)
Adopting universalist-enterprise law principles to enhance centralizations
184(3)
Centralization, entity law, and territoriality
187(2)
Alternative methods of global consolidation---full or partial centralization
189(5)
A single jurisdiction to which the MEG as a whole has connection---identifying the MEG home country
194(8)
Problems in identifying a home country
202(3)
Promoting timely and efficient resolution of the insolvency process
205(1)
Reducing excessive and complex litigation
205(3)
Reducing expenses and time waste on obtaining information
208(1)
Reducing costs related to conducting multiple insolvency proceedings, transnational communication, and relocation of proceedings
209(2)
Reducing the inefficiency resulting from successive filings
211(1)
Global procedural consolidation for `business integrated' insolvent MEGs---a summary
212(3)
Additional Linking Tools for `Asset Integrated' MEGs
215(20)
Maximizing returns and facilitating rescues in `asset Integrated' MEGs
215(4)
Pooling `the substance' of entities in the course of insolvency---available mechanisms
219(5)
Substantive consolidation and entity law
224(1)
Allowing substantive consolidation in cases of a facade of `asset partitioning'
224(3)
The merits of entity law are less pronounced in closely linked MEGs
227(1)
Substantive consolidation and SPVs
228(1)
Different levels of substantive consolidation (partial substantive consolidation)
228(1)
Substantive consolidation by consent
229(1)
Summary
229(1)
Global measures and the universality-territoriality dilemma
230(1)
Greater need for international coordintion in cases of `asset integrated MEGs'
230(2)
Global substantive consolidation and centralization
232(1)
Various means for achieving global substantive consolidation
232(3)
Global substantive consolidation for `asset integrated' insolvent MEGs---summary
235(1)
Conclusion
235(2)
Equitable Distribution and Accountability
237(33)
Introduction
237(3)
Joint Solutions (for MEG Insolvencies) and Redistribution
240(5)
The basic rule: maintaining the separateness among the MEG entities under procedural consolidation
240(1)
Maintaining equitable distribution: a case for stronger enterprise law-based solutions
241(1)
Voting on reorganization plans
241(2)
Global group-wide sales
243(2)
Summary
245(1)
The Global Measures (Supporting Consolidation) and Issues of Distribution
245(9)
Protecting creditors in applying universalism-based solutions in MEG cases
245(4)
The standard test for the group central proceedings and fairness considerations
249(5)
Global Substantive Consolidation and Redistribution
254(5)
Asset integration
255(1)
Reliance
256(3)
Creditors' Participation and Adequate Representation in the Proceedings
259(9)
Accountability on a global group-wide basis
259(3)
Adequate notifications and consideration of relevant information as measures to enhance global group-wide creditors' participation
262(3)
Handling the case in the proper venue
265(1)
Dealing with conflicts of interest
265(2)
Expertise of insolvency representatives handling MEG insolvency cases
267(1)
Conclusion
268(2)
Certainty and Predictability
270(16)
Introduction
270(2)
Problems of Predictability in Regard to MEG Insolvencies under Current Regimes
272(3)
Global Linking Tools Compatible with Typical Expectations of Voluntary Creditors
275(8)
Universal or territorial process for the MEG and problems of predictability
275(4)
Procedural or substantive consolidation for MEGs and certainty---predictability demands
279(1)
Unequivocal and stable home country standard
280(3)
Statutory Basis for the Linking Tools Invoked
283(1)
Conclusion
284(2)
Responsibility for Debts of MEG Members and Vulnerability of Intra-group Transactions
286(40)
Introduction
286(1)
`Group Considerations' in Avoiding (or Upholding) Intra-group Transactions
287(7)
The typical avoidance provisions and their key elements
287(1)
Applying avoidance provisions to intra-group transactions
288(2)
Eliminating intra-group transactions in cases of `asset integration'
290(1)
Greater scrutiny in applying avoidance provisions to intra-group transactions
290(1)
Upholding intra-group transactions based on `group considerations'
291(2)
Summary
293(1)
Protecting Creditors of `Vulnerable Entities'---Fraud, Wrongful Trading, and False Impression of Creditworthiness by Group Members
294(7)
Introduction
294(1)
Extending the notion of `management' to the controlling entity
294(2)
Considering circumstances of `mismanagement' in the group context
296(3)
Scenarios of mismanagement distinguished from circumstances of voidable transactions or `asset integration'
299(2)
Available `Enterprise Law' Remedies for Adequate Assessment of Intra-group Transactions and Creditor Protection in Insolvency
301(10)
`Group considerations' in avoidance provisions
301(2)
Group liability via lifting the corporate veil or directors' duties doctrines
303(1)
Group liability via fraudulent or wrongful trading regimes
304(3)
Explicit consideration of group liability in insolvency
307(2)
Deference of group members' claims in insolvency
309(2)
Conflict with Entity Law---Balanced Solutions
311(8)
Avoidance of intra-group transactions and the entity---enterprise law dilemma
311(2)
Balanced `linking tools' for group liability
313(1)
Caution in imposing liability or subordinating claims
313(1)
The role of enterprise law
314(3)
The available provisions for group liability considered in light of entity/enterprise law concerns
317(1)
Summary
318(1)
Global Measures and the Universality---Territoriality Dilemma
319(5)
Conclusion
324(2)
Summary and Conclusion 326(7)
Bibliography 333(20)
Index 353
Irit Mevorach holds degrees in law from Tel-Aviv University (LLB with distinction, LLM) and UCL, London (PhD). Prior to joining the University of Nottingham in 2006, Irit practiced corporate and insolvency law in a law firm in Tel-Aviv. She is a barrister and a solicitor, member of the Israeli Bar Association. Her main interests are in corporate law (especially the law of corporate groups and international aspects of corporate law) and insolvency law, in particular European, comparative and international insolvency. In 2005, she has won the 2005 gold medal prize for research in international insolvency from the International Insolvency Institute. Irit is a member of INSOL Europe and of INSOL International Academic group.

She has advised the European Bank for Reconstruction and Development. She is currently taking active part in the UNCITRAL work in the area of insolvency (since 2006 she has been an advisor to the UK government in UNCITRAL Working Group V's deliberation in the area of enterprise groups in insolvency), and she is an advisor to the International Insolvency Institute (III) Committee on international jurisdiction and cooperation. On undergraduate level, she currently convenes the company law course in the University of Nottingham and also teaches insolvency law and commercial conflict of laws. On the LLM course she convenes a module on International aspects of Company and Insolvency Law.
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