11 May CONSIDER YOUR ARGUMENT ON EFFECTIVENESS – EFFECTIVE AGAINST WHAT STANDARD/MEASUREMENT?
You must demonstrate understanding of Australia Corporations Act s 581 and s 583, and draw comparison with UK s426 and US broad discretion.
• You must demonstrate high level understanding of Chapter 5 of Australia’s Cross-Border Insolvency Act (not 5.2, 5.4A) and s 601CL of the Corporations Act.
• You must incorporate these cases into your essay Alari [2018] FCA 1067, Edelsten [2016] FCA 1269, Zetta Jet [2018] FCAFC 132, Suk [2016] FCA 1404.
• You must demonstrate understanding of Part 4 of UNCITRAL Cross Border Insolvency Model Laws 2014.
• You must demonstrate comprehension of recent and pending reforms in this area in the jurisdictions you chose, e.g. US (2018), Europe (2017 regulations), Singapore (17/18 reform) etc.
• You must use authoritative report when referencing cases. Mark will be deducted for each reference contradicting AGLC. Foreign laws and precedents must be in the correct AGLC reference.
Hint:
• you start with by researching how US Chapter 11 (or other jurisdictions of your choice) differs from Australian corporate insolvency legislation, look at cases where Australian companies accessed US courts to protect assets from quick sale liquidation. What about Australian creditors seeking recovery in other jurisdictions? Which jurisdiction seeks to be “treaty-shoppers paradise”, and which jurisdiction seeks maximum protection for special classes of local creditors (e.g. employees and tax office priority as unsecured creditor), which jurisdiction seeks to encourage entrepreneurship and risk-taking. Chart UNCITRAL model law enactment against this spectrum.
• Consider your argument on effectiveness – effective against what standard/measurement?
• Your argument may parallel the territorialism vs universalism vs modified universalism debate, but no mark is allocated for historical or theoretical research, mark is only given for arguments backed by cases.
• Remember if you deem the UNCITRAL model law not effective, you must give case evidence to show why European regulation on cross-border insolvency is more effective, theoretical and hypothetical discussions do not strengthen your argument.
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