Forthcoming (2018) in The Oxford Handbook of Fiduciary Law (Evan J. Criddle, Paul B. Biller, and Robert H. Sitkoff, Eds.)


Insolvency law (bankruptcy law to some) moves so quickly in the cross-border realm that this piece's discussion, started in 2015, is probably already outdated. Nonetheless, I publish it unrepentently because it turns overdue attention to the role of soft law in this domain. Building on earlier work in which I address the role of incrementalism, I discuss the marked success of the UNCITRAL Model Law on Cross-Border Insolvency and its cognate Insolvency Regulation in the EU (the latter now into its "Recast"). As predicted/hoped, the EU Recast, joining other contemporaneous reform projects, is building upon the scaffolding of legal doctrines erected by the Model Law. This is a success for soft law. Here, however, I am using "soft law" both to define the binding force of the international instrument and the substantive ambition of its insolvency law specificity. Soft law, thus defined, appears to have reigned triumphant.


Bankruptcy Law | International Law | Law

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