Insolvency administrator and his role in insolvency proceedings Abstract The thesis deals with the professional requirements for an insolvency administrator and his status and activities in the insolvency proceedings. Considering the frequent amendments of the legislation regulating insolvency proceedings, including the rights and obligations of the insolvency administrator, this is a particularly relevant topic. The aim of the thesis is to provide a comprehensive overview of the conditions which must be met to become an insolvency administrator, what role the insolvency administrator performs in insolvency proceedings and what are his most important rights and obligations. The thesis is divided into six chapters. The first chapter deals with legal regulations governing the status and activities of the insolvency administrator and includes, in particular, two fundamental acts and their implementing decrees. The second chapter addresses the person of the insolvency administrator from a professional perspective, that is to say, what are the preconditions for obtaining permission to practise as an insolvency administrator and under what conditions the authorisation to practise ceases. Furthermore, the chapter covers the area of the list of insolvency administrators and the way in which insolvency...

Reorganization Abstract The subject of this thesis is reorganization as one of conceivable means of resolving insolvency or imminent insolvency within the territory of the Czech Republic. The objective of the thesis is primarily to put this legal institute into the context of the Czech insolvency law and to provide its reader with an insight not only into the legal regulation encompassed in the Insolvency Act but also into all the topical issues that are currently surrounding reorganization. The first chapter acquaints the reader with the development of the Czech insolvency law, in particular with the process of adopting the Insolvency Act and the pivotal conceptual changes it introduced. Furthermore, the chapter revolves around external influences from abroad that have served the legislator as sources of inspiration and as a consequence of which have to a certain degree shaped the Czech insolvency law into its current form. Last but not least, this chapter deals with the legislation of the European Union which primarily governs insolvency proceedings that entail a cross-border element. The second chapter, which forms the main part of the thesis, provides a complex and thorough description of the regulation on reorganization which is contained in the Insolvency Act. At the same time, it provides a critical...

1 Filing claims in insolvency proceedings Abstract The topic of this master's thesis is the issue of filing claims in the Czech insolvency proceedings, especially the lodging of claims but also other ways of filing claims. Furthermore, the thesis deals with the legal regulation of lodging claims in European insolvency law. Finally, the subject of the thesis is the evaluation of the position of creditors and debtors in insolvency proceedings with a detail on discharge of debt. The aim of this thesis is to comprehensively elaborate on the issue using the Czech legislation and the European Union legislation. To deepen the legal analysis of the filing of claims the author uses already established court practice and other case law conclusions of higher courts, as well as professional literature. In addition to the descriptive method of defining the issue, the author also applies her own evaluating conclusions and considerations and uses the experience gained from her insolvency practice. The author describes the system of lodging claims including the analysis of the deadline for lodging claims and disputes arising from this regulation and further deals in detail with the lodgement form, its submission and the creditor's responsibility for the correctness of the lodgement. The author characterizes specially...

Common law, basically afforded employees the right to choose their employers. This freedom to contract was normally visible in instances of transfers of undertakings and it, therefore, meant that an employer could not transfer an employee‘s employment contract without the latter‘s consent. When an undertaking went insolvent on the other hand, employment contracts also terminated and the notion of ―advantage to creditors‖ meant that employees were left with little to nothing to show for their years of employment. Consequently, employees found themselves out of jobs and struggling to make ends meet. However, the legislator implemented section 197 of the Labour Relations Act 66 of 1995which was ultimately amended in 2002 to regulate the transfer of a business, trade or undertaking, where such are transferred as a going concern. This therefore meant that employment contracts are transferred automatically upon such transfers. The enactment of section 197A together with the amendment of section 38 of the Insolvency Act meant that the notion of advantage to creditors was dealt away with; hence protection was afforded to employees. The aim of this piece is to examine the effects of transfer of undertakings on employee rights in both labour law and insolvency law. In this field of transfers, South Africa has followed England for some time. This has been evident before the enactment of section 197 of the Labour Relations Act 66 of 1995. In Roshall v Design Three1989 10 ILJ 1127 the court acknowledged the common law position stated in Nokes v Doncaster Amalgamated Collieries Ltd1940 AC 1014 (HL).The court in this case stated that one‘s right to choose an employer is ―the main difference between a servant and a serf‖. This piece will, therefore, compare the position in South Africa with one of England. A further comparison will be made with the European Union law, because problems experienced in South Africa and England were encountered by the European Union (hereafter-EU) as well. The aim of this piece is to draw similarities and differences between South Africa, England and European Union as a whole and establish whether employees do get protection from Labour and Insolvency legislation upon transfer of undertakings that are both insolvent and solvent. / LLM (Labour Law), North-West University, Potchefstroom Campus, 2015

Common law, basically afforded employees the right to choose their employers. This freedom to contract was normally visible in instances of transfers of undertakings and it, therefore, meant that an employer could not transfer an employee‘s employment contract without the latter‘s consent. When an undertaking went insolvent on the other hand, employment contracts also terminated and the notion of ―advantage to creditors‖ meant that employees were left with little to nothing to show for their years of employment. Consequently, employees found themselves out of jobs and struggling to make ends meet. However, the legislator implemented section 197 of the Labour Relations Act 66 of 1995which was ultimately amended in 2002 to regulate the transfer of a business, trade or undertaking, where such are transferred as a going concern. This therefore meant that employment contracts are transferred automatically upon such transfers. The enactment of section 197A together with the amendment of section 38 of the Insolvency Act meant that the notion of advantage to creditors was dealt away with; hence protection was afforded to employees. The aim of this piece is to examine the effects of transfer of undertakings on employee rights in both labour law and insolvency law. In this field of transfers, South Africa has followed England for some time. This has been evident before the enactment of section 197 of the Labour Relations Act 66 of 1995. In Roshall v Design Three1989 10 ILJ 1127 the court acknowledged the common law position stated in Nokes v Doncaster Amalgamated Collieries Ltd1940 AC 1014 (HL).The court in this case stated that one‘s right to choose an employer is ―the main difference between a servant and a serf‖. This piece will, therefore, compare the position in South Africa with one of England. A further comparison will be made with the European Union law, because problems experienced in South Africa and England were encountered by the European Union (hereafter-EU) as well. The aim of this piece is to draw similarities and differences between South Africa, England and European Union as a whole and establish whether employees do get protection from Labour and Insolvency legislation upon transfer of undertakings that are both insolvent and solvent. / LLM (Labour Law), North-West University, Potchefstroom Campus, 2015

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This thesis examines fraud as a basis for the voidability of transfers in Scots law. In particular, it focuses on misrepresentation and fraud on creditors. In so doing, an attempt is made to provide a principled account of the effect of fraud on transfer which can explain the well-established rules in this area, show how these rules fit within the broader framework of private law and provide some guidance as to the appropriate result in cases where a rule is not clearly established. This account depends on examining the development of the law from a historical and comparative perspective, with particular emphasis on the periods during which the relevant rules and institutions were being developed or received in Scotland and on the links between this process and the wider ius commune tradition. The central contention is that avoidance of a transfer on the basis of fraud is justified by a personal right held by the party at whose instance the avoidance takes place. In the core cases, this personal right is a right to reparation for a wrong for which the transferee is liable. At the periphery, the personal right may arise from the law of unjustified enrichment rather than from the law of delict. This characterisation of the basis of avoidance explains the protection afforded to subsequent acquirers and the limited effect which avoidance has in certain circumstances. It shows the interaction between the law of property and the law of obligations in this area and enables principles developed in the context of one instance of fraud on creditors to be applied to difficult problems in relation to other instances.

Global custody is a service whereby a single custodian holds its client's international portfolio through a network of local sub-custodians, clearing systems and depositaries. Modern custodial practice is electronic and cross border. The lack of a tangible and allocated subject matter cuts across the traditional characterisation of custody as bailment. Ambiguities as to the location of custody assets raises novel questions of conflict of laws. It is argued that computerised debt securities are not negotiable instruments, but that the benefits of negotiability are available by other means, in particular the rules of equity and of private international law. It is argued that the impact of computerisation of registered securities is more limited, due to the historically intangible and unallocated nature of company shares. Traditionally, the custodian is a bailee in resect of securities, and a bank debtor in respect of cash. It is argued that because computerised custody securities are intangible and fungible, the custodian is not a bailee but a trustee. Where the securities of different clients are conuningled, the difficulty in showing certainty of subject matter for a valid trust is discussed. It is suggested that commingled clients should be treated as equitable tenants in common. Principles of private international law are discussed in relation to global custody generally, negotiability, taking security and custodian insolvency. The fiduciary duties of the custodian are considered in the light of recent case law. It is concluded that the uncertainties raised by the electronic and cross-border nature of global custody may largely be addressed by greater use of the principles of the law of trusts, and careful drafting in customer documentation.

RAISING CLAIMS IN INSOLVENCY PROCEEDING - ENGLISH ABSTRACT The aim of this thesis is to provide a comprehensive summary of institutes of an insolvency law related to the application of claims as well as defining the rights and obligations of creditors related to this topic with a closer focus on risk and problematic facts appearing in practice. All the text is based on the insolvency law effective at the time of its creation and besides the academic literature also often uses related practice of the courts. The introductory part presents an insolvency law in its historical and also contemporary context. It is listing the material sources and their brief characteristics needed to simplify the understanding of the substance of an insolvency law. For the same reason the initial chapters deal with the basic principles and terminology of an insolvency law, namely an insolvency proceeding, a bankruptcy and closely characterize particular ways of solving a debtor's bankruptcy. Another part of this thesis focuses on the actual debts. The legal analysis of the term debt and its types that are applied during insolvency proceedings is being carried out and it involves also the list of debts excluded. On the other hand this part includes the theory of debts with no need to be applied, since those are registered into...

The thesis provides a detailed overview of crisis resolution options available to distressed companies in the Czech legal environment. The work starts by describing the most common causes of corporate distress in attempt to understand the process of decline and define the key steps to prevent crisis in the early stage. We then proceed to discuss the methods of resolution that can be applied in the early pre-bankruptcy stages of distress, including downsizing and divestitures, out-of-court settlement with creditors, mergers with or acquisition by strategic or financial investors, or voluntary liquidations. Further on, the work provides a comprehensive summary of the Insolvency Act, the Czech legislation governing bankruptcy proceedings, concentrating on the option that could preserve business operations of troubled companies -- reorganisation. In the practical part of the thesis, the author evaluates the reorganisation plan of ČKD Kutná Hora, a.s., focusing on the company-specific issues and assessing the viability of the plan according to a number of success and risk factors, as well as the objectives stipulated by the Insolvency Act.