Milman, David --- "Promoting Distributional Justice on Corporate Insolvency in the 21st Century" [2011] ELECD 629; in Steele, Jenny; van Boom, H. Willem (eds), "Mass Justice" (Edward Elgar Publishing, 2011)

Book Title: Mass Justice

Editor(s): Steele, Jenny; van Boom, H. Willem

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9781849805063

Section: Chapter 8

Section Title: Promoting Distributional Justice on Corporate Insolvency in the 21st Century

Author(s): Milman, David

Number of pages: 22

Extract:

8. Promoting distributional justice
on corporate insolvency in the 21st
century
David Milman

1. INTRODUCTION

This chapter will seek to offer a contemporary perspective on the perennial
distributional problem on corporate insolvency under English law. That
conundrum involves the development of legal strategies to resolve the
inevitable issue of who loses out when an insolvent estate fund is found to
be insufficient to satisfy all competing claims against it. There is often no
question of full redress or reinstatement of rights in this scenario: rather
the issue is one of allocating losses between competing interest groups.
This chapter may therefore offer an interesting "spin" on the general
debate centred on dealing with the masses. The focus of the study prima-
rily will be on English law, with a limited amount of comparative input.
Such a comparative perspective is appropriate because this is a problem
that is ubiquitous in Western legal systems. The underlying difficulty for
the legal system is one of insufficiency of assets, a phenomenon made
worse by the tradition of allowing "carve outs" based upon pre-insolvency
contractual arrangements between the debtor and its creditors. English
law, which is often characterised as a pro-creditor jurisdiction, is particu-
larly susceptible to this syndrome. The research question therefore will be
to reflect upon how the approach of English law towards ensuring distri-
butional justice on corporate insolvency1 has developed over the course
of the past two decades and to consider whether further reforms could be
made in order to ...