Forthcoming, Brook. J. Corp. Fin. & Com. L. vol. 9, 2015


Choice of law in cross-border insolvency is gaining increased attention, not just by lowly academics but by policymakers who actually matter. I argue it is time to bring some normative guidance to the burgeoning reform efforts. At the highest level of theoretical purity, universalism seems to have (rightly) captured the biggest following. But it has been scaled back by what I call “second-order” considerations of pragmatics to its lesser, modified form. I take that retrenchment as necessary and note how it has been deployed through a carveout-based regime of subject-specific exceptions from lex fori concursus. Given that lay of the land, I suggest a “third-order” normative framework for moving beyond discrete subject matter carveouts and instead propose a reorientation toward a normative principle to justify the necessary carveouts of modified universalism: actual, defensive litigant reliance should be what warrants departure from COMI insolvency law. I contend that this new framework will serve a desirable cabining effect on territorialism by reserving the application of non-COMI law for circumstances when it is truly “required.”


Bankruptcy Law | International Law | Law | Law and Economics

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