Elaborating UNCITRAL's Legislative Guide on Insolvency Law: Principles for Natural Persons

Abstract

This article advances detailed proposals for an expansion of UNCITRAL’s landmark Legislative Guide on Insolvency Law to encompass several key issues of particular concern to individual debtors. Small entrepreneurs makes up the vast majority of business actors in the world today, yet most of the discussion in the Guide is concentrated on corporate insolvency resolution. The Guide currently makes reference to natural person debtors, but it offers little or no discussion or consideration of several of the most salient issues unique to natural persons, as opposed to juridical entities. Many of these issues have crystallized only after the Guide’s adoption in 2004, and a vast expansion of judicial and legislative activity on personal insolvency since that time has thrust these issues to the forefront of insolvency policy. This article thus advocates for a revisitation and expansion of the Guide by surveying in detail the most critical divergences in law and practice among existing personal insolvency regimes, including several of the newest laws adopted in 2015 and 2016. It proposes that the Guide’s discussion of these issues, and of the very goals to be achieved by an insolvency law, be augmented by consideration of these crucial emerging topics, which are of increasing concern for legislators seeking the very guidance that UNCITRAL and its Legislative Guide project had aimed to provide.