Corporate Insolvency Law in the 21st Century: State-Imposed or Market-Based?

Abstract

The central premise of this paper is that financial innovation and the everincreasing complexity of proprietary entitlements necessitate a principled recalibration of the boundaries of regulation and contract in corporate insolvency law, a recalibration that is already under way. Through the lens of a combination of ‘commons/anti-commons analysis’ and ‘contractualisation of bankruptcy’ models, the paper critically analyses recent developments at European and national level, in particular the development and reform of the concept of Centre of Main Interest (COMI), the rise of pre-packaged administrations and the reformulation of the anti-deprivation principle. The adopted theoretical framework explains and justifies these developments and provides some guidance for future reform efforts.