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Vol 21 No 9 Sept/Oct 2016

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Goode on Commercial Law

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Insolvency Within Multinational Enterprise Groups

ISBN13: 9780199544721
Published: May 2009
Publisher: Oxford University Press
Country of Publication: UK
Format: Hardback
Price: £100.00

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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. This issue has been neglected in both national and international regimes.

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.

The book suggests a clear model 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 is desirable if applied in appropriate types of cases and if it does not unduly defeat entity law and territoriality concerns.

Insolvency Law
The context of insolvency within multinational enterprise groups- the phenomenon and key problems
1. The phenomenon of the multinational enterprise groups
2. To link or not to link? The problem of the multinational enterprise group business structure
3. Global frameworks or state-based insolvencies- the problem of cross-border insolvency
Guiding Objectives and Typical Scenarios
4. The collated goals of insolvency systems
5. Prototypical scenarios of insolvency within multinational enterprise groups
The quest for appropriate solutions for insolvency within multinational enterprise groups
6. Preservation of the estate, maximization of value and rescues- administering the multinational enterprise group insolvency
7. Respect of pre insolvency entitlements (or- redistribution) and accountability
8. Certainty and predictability
9. Responsibility to debts of multinational enterprise group members and attack of intra-group transactions- ex post penalties and remedies in insolvency