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ILA Academic Group Annual Meeting 2012

23/03/12

The Academic Group met this year in the splendid surroundings of the Luton Hoo Hotel, a venue further enhanced by superb weather.  Four papers were presented, covering a balanced range of pertinent issues.

The first paper was presented by Professor Andrew Keay (University of Leeds).  Professor Keay analysed the duties owed by company directors to creditors in circumstances where the company was experiencing financial distress.  In particular, he examined the relationship between the various components of the provisions of Companies Act 2006 s. 172.  In the discussions after this paper was presented several of the attendees noted in the context of this issue the practical difficulties, when advising clients, which may be caused by the advent of the more flexible test for insolvency laid down in s. 123(2) of the Insolvency Act 1986 as explained by Lord Neuberger MR and Toulson LJ in BNY Corporate Trustee Services Ltd  v Eurosail-UK 2007- 3BL [2011] EWCA Civ 227, [2011] BCC 399.

This contribution was followed up by Professor David Milman (University of Lancaster) who presented a brisk review of recent developments in personal insolvency law. The focus here was on the three main legal procedures available in English Law to resolve personal debt - debt relief order, bankruptcy and IVA.  The recent decisions of the Supreme Court in Secretary of State for Work and Pensions v Payne [2011] UKSC 60 and its mitigation by the Insolvency (Amendment) Rules 2012 (SI 2012/469) were noted.

After a break to gather our thoughts, Professor Rebecca Parry Nottingham Trent University] presented her thoughts on the subject of  "Transactional Avoidance in International Insolvencies: Prospects for EU Harmonisation".  The difficulties of any EU wide harmonisation in this highly technical area were emphasised, but the potential for some reform was recognised.  The position on transactional avoidance on insolvency in a number of EU national systems was reviewed.  One key problem here was to maintain a balance between the legitimate need for operating a system of effective transactional avoidance against the natural desire not to frustrate corporate rescue.

The Academic Colloquium was rounded off by Dr Paul Omar (University of Sussex) who examined the emerging jurisprudence on the common law principle of judicial comity in cross border insolvency situations in the wake of Cambridge Gas [2006] UKPC 26.  Consideration was given to the implications of a number of recent cases in English law (some of which are on appeal to the Supreme Court) together with  the judgment of the Irish Supreme Court in Re Flightlease (Ireland) Ltd [2012] IESC 12.

All of the four papers attracted considerable discussion.  The input of those practitioners who were in attendance added great value to the debate.

 

David Milman

Chair of the Academic Colloquium