Bankruptcy is in the Eye of the Beholder

Bankruptcy is in the Eye of the Beholder
2020-11-02

Ms Donna McKenzie-Skene presents the second contribution to the Centre for Commercial Law (CCL)’s blog series on “Seeing Commercial Law from Different Perspectives” launched to celebrate the University of Aberdeen’s 525 anniversary and to showcase CCL members thought-provoking standpoints on researching, teaching, or practising commercial law. Donna joined the School of Law in 1992 after a number of years in private practice. Her research and teaching interests include insolvency law (domestic, comparative and international) and countryside law, in particular, land reform and access.

“Bankruptcy (insolvency) has been described as “a destroyer and a spoliator”. But the extent to which this is true depends on one’s perspective. The modern emphasis on corporate rescue and fresh start means that insolvency law can provide opportunities for corporate debtors to restructure and return to financial health and for individual debtors to benefit from debt relief and the chance to start again. And while creditors and others may lose out on insolvency, at least in the case of corporate rescue they may also benefit from a better outcome than could be achieved in a traditional liquidation. Furthermore, insolvency law is no longer, if it ever was, solely a matter of the private interests of those affected: there is a strong element of public interest at a number of levels, from ensuring that there is a fair and efficient system for dealing with insolvencies which reflects international standards to regulating commercial morality in individual cases. That intersection of private rights and public interest will assume even greater importance in a post-Covid–19 world where insolvencies are expected to rise as a result of the financial impact of the pandemic and insolvency law will be judged on its ability to balance the interests of all involved, both private and public.”         

The next contribution to this series by Mr Chike Emedosi is titled ‘The Publicity Principle: A Case of Two Competing Interests but One Law.’

Published by School of Law, University of Aberdeen

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