Appointing and Remunerating Insolvency Practitioners in Japan: The Roles of Japanese Courts
This excellent review of insolvency practice in Japan provides an instructive perspective for those of us from Western legal traditions, although with familiar and settled insolvency principles clearly evident. The article is written by an Australian expert on Japanese law, Associate Professor Stacey Steele, of the Asian Law Centre, Melbourne Law School. It appears in the […]
Insolvency Law Bulletin – special law reform double issue
The latest Insolvency Law Bulletin (INSLB) is a special insolvency law reform double issue covering various aspects of the changes being introduced by the Insolvency Law Reform Act 2016, as well as further reforms here and in New Zealand. Articles include: Insolvency Law Reform Act 2016: practical implications for insolvency practitioners “While the operation of certain […]
How fixed fees work in insolvency – 1,796 companies at £6000 each = £1600 per company
An English Chancery Court decision has given guidance on the reasonableness of fixed fees in an insolvency, albeit the fees of a corporate adviser acting for companies in assisting with their entry into liquidation. Insolvency practitioners’ remuneration in Australia, and internationally, is generally determined in a time cost basis, one reason being the unpredictable nature […]
INSOL International – Special Report on Insolvency Practitioners’ Remuneration
INSOL International has just published a global review of how insolvency practitioners’ fees are assessed and approved across a range of jurisdictions, including Australia. The opening commentary provides a good summary of the various approaches and their respective merits, followed by more detailed explanations of 14 countries’ fee regimes. Australia is in the midst of insolvency reform […]
Traill’s 16th Insolvency Conference 1-2 May – a wrap-up
A wide range of legal and practice issues concerning the current insolvency law changes under the Insolvency Law Reform Act 2016 were explained and discussed on the second day of the Traill Insolvency Conference, including how to assess reasonable requests for information, what notice must be given to creditors within the opening weeks of the insolvency, […]
Insolvency disclaimer of orphan wells – Linc Energy compared
While Australia is pondering the quirk in its Constitutional referral of powers arrangements which has resulted in Queensland’s environmental protection law being found to prevail over the disclaimer rights of the liquidators of Linc Energy under the Corporations Act, the same issue has just been determined on appeal in Canada. On 24 April 2017, the Alberta […]
MSME insolvencies – more on small business ‘exits’
My recent report explained that the insolvency of micro and small to medium enterprises (MSMEs) is to be the subject of consideration by Working Group V (insolvency) of UNCITRAL. MSMEs insolvencies for this purpose include small companies and individuals in business, that is, from our Australian perspective, both corporate and personal insolvency. Many of the issues […]
A Russian liquidation – part of “a long and abusive campaign on the part of the Russian Government”
Claims that the reinstated liquidation of a Russian company – DSL – was part of “a long and abusive campaign on the part of the Russian Government to attack” a party which had exposed fraud and corruption in Russian authorities were raised in a recognition application before the High Court in London under the English equivalent of […]
Mental health and bankruptcy
The account of the bankruptcy of Sir Garfield Barwick and the personal impact that it had on him is a reminder of the need for trustees in bankruptcy to have some education or training to ensure they are at least aware of manifestations of poor mental health, and how to deal with that in the legal context. Many […]
Linc Energy – environmental law v insolvency law
“It is a simplistic statement but one that is necessary to emphasize: insolvency statutes … do not mesh very well with environmental legislation”: Justice Geoffrey Morawetz, Ontario Superior Court of Justice, Re Nortel Networks Corporation 2012 ONSC 1213 at [101]. The outcome of the Linc Energy decision is explained here. In directing the liquidators to use available funds to […]
Linc Energy – how not to regulate and enforce environmental laws
Last Week’s Linc Energy decision out of Queensland – Linc Energy Ltd (in Liq) [2017] QSC 053 – could be seen as merely an arcane constitutional outcome arising from distant Commonwealth-State negotiations leading to a finding that a state environmental law prevailed over settled principles of insolvency law under the Corporations Act. Liquidators should take their […]
Micro and small to medium enterprises – what to do about their insolvency
With latest ABS data showing that Australia is primarily a nation of small business operators, largely successful, it is perhaps to timely to also report that the inevitable failure and then efficient disposal of some of them, with some accountability, is not well addressed by our laws. While the focus of insolvency is invariably at the high end, […]
Liquidators’ remuneration – Sakr Nominees reaffirmed
A senior Judge has approved the remuneration of a liquidator in full based upon the principles set out in the recent appeal decision in Sakr Nominees. In fact, the Judge, Justice Fabian Gleeson, of the NSW Court of Appeal, as on the appeal bench in Sakr. The liquidation It was a members’ voluntary liquidation but […]
Directors and their safe harbour – how to get them to behave
An aim of the latest “safe harbour” insolvency reforms is to “drive cultural change” in company directors by encouraging them to keep control of their company with a view to working on its recovery, rather than simply putting the company into a formal insolvency administration. While changing the law will assist, much more beyond that is […]
Whistleblowing, as a means of professional regulation?
The use of whistleblowers in the regulation of tax and corporate law, and the bases for incentivizing and protecting them, are significant policy and legal issues. The potential for whistleblower abuse, or its uninformed use, is evident. A wider importance of reporting offences is apparent in a negative sense, given the various current inquiries where institutionalized criminal abuse […]
Protected: The facts of the ethics hypothetical of the Academy of Law 4 April 2017
There is no excerpt because this is a protected post.
The law and lawyers: their limits – an Academy of Law Ethics Hypothetical
The Australian Academy of Law held the first of its three Sydney conferences for the year on 4 April 2017 under the theme of the law and ethics. It was a very successful and thought provoking event before a large audience of around 200 lawyers and other professionals, judges and academics, in the ceremonial court […]
The bankruptcy of Sir Garfield Barwick, Chief Justice of the Australian High Court – an example of a true ‘fresh start’
A significant aspect of our legal, social and political history has been revealed through a paper presented on the financial difficulties and subsequent bankruptcy of Sir Garfield Barwick, who became the Chief Justice of the High Court of Australia. Lessons from that history are then shown to have direct relevance to the debates about bankruptcy […]
The Fletcher Moot – the winners, and the many honourable law student competitors
The Fletcher Moot 2017 was a significant organisational and educational achievement in the teaching of insolvency, in this case, the complexity of cross-border insolvency. It brought together law school teams from around the world to compete in presenting and arguing complex factual and legal issues before panels of local and international judges, with the closing […]
Law reform – a carve-out from directors’ insolvent trading liability, with a change in their culture in return
The draft ‘safe harbour’ provisions proposed by the government offer directors two advantages in what must be their genuine attempts to save their business. A consequence is that the liquidator, waiting in the background if things do not go as planned, takes on an extra burden in any pursuit of those directors, save for one reform in […]
