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14 J. Corp. L. Stud. 1 (2014)

handle is hein.journals/corplstd14 and id is 1 raw text is: April 2014 Journal of Corporate Law Studies DOI:10.5235/14735970.14.1.1 CORPORATE INSOLVENCY LAW IN THE TWENTY- FIRST CENTURY: STATE IMPOSED OR MARKET BASED? MICHAEL SCHILLIG* The central premise of this article is that financial innovation and the ever increasing complexity of proprietary entitlements necessitate a princ led recalibration of the boundaries of regulation and contract in corporate insolvency law, a recalibration that is alreadj under way. Through the lens of a combination of commons/anti-commons analysis and contractualisation of bankruptcy models, the article critically analyses recent developments at European and domestic level, in particular the development and refoi of the concept of centre of main interst, the rise of pre packagrd admhinitations and the reformulation of the anti-deprivation principle. The adopted theoreticalframework explains and justifies these developments and provides some guidance for future reform efforts. A. INTRODUCTION Since the publication of the Cork Report' more than 30 years ago, corpo- rate insolvency law has flourished as a subject of academic enquiry. Initially perceived as a rather technical area, of relevance mainly to practitioners, the interest in a theoretical and principled analysis of the complex policy issues involved has increased significantly With the enactment of the European Insolvency Regulation (EUIR),3 corporate insolvency law in Europe has effec- tively become a multilayered system,' a tendency that is likely to increase. The School of Law, King's College London. A draft of this paper was first presented at the INSOL Europe Academic Forum conference in Venice, September 2011. I would like to thank Rolef de Weijs, Roger Brownsword and Robin Parsons for helpful comments. The usual disclaimer applies. I Report of the Review Committee, Insolvency Law and Practice (Cmnd 8558, 1982). 2 R Goode, Ptinciples of Corporate Insolveny Law (4th edn, Sweet & Maxwell 2011) para 1-01; V Finch, Corporate Insolveny Law: Pespectives and Ptinciples (2nd edn, CUP 2009) ch 2; RJ Mokal, Corporate Insolvency Law: Theoy and Application (OUP 2005). 3 Council Regulation (EC) 1346/2000 of 29 May 2000 on insolvency proceedings [2000] OJ L160/1. 4 The EUIR is a conflict of laws instrument containing mainly rules on jurisdiction, the applicable law and the recognition and enforcement of foreign decisions. However, it also contains provisions of a substantive nature, eg EUIR, art 7(2). 1