The ranking of creditors’ claims is a salient aspect that affects the distribution of the proceeds realised out of the assets of the insolvent estate. Ugandan insolvency law divides creditors into secured and unsecured creditors. Therefore, when it comes to the order in which debts are paid from the proceeds of the insolvent estate, sections 11 to 14 of the Insolvency Act 2011 of Uganda provides for an order of distribution alongside the statutory preferent claims of creditors. This order is similar to insolvency laws in other jurisdictions. This study will briefly describe the insolvency procedures and recognised creditors in Uganda, specifically the provisions of sections 11 to 14 of the Insolvency Act. It will further undertake a comparative study of the rules pertaining to the settlement of secured and unsecured debts in selected jurisdictions. This study will determine which debts are prioritised for payment in Uganda and the selected jurisdictions, and whether the ranking of creditors is fair. It will further ascertain whether there are any new classes or priority claims in other jurisdictions which should be introduced into the Ugandan system. An analysis of policy considerations, principles and guidelines set forth by the World Bank Reports on the manner that insolvency systems should operate will be undertaken. This analysis will enable the identification of specific recommendations made in the Reports that relate to the manner in which insolvency systems should approach distributions, especially regarding priority claims and their ranking. Therefore, against the background of the findings of the comparative study and the recommendations by the World Bank Reports, the study will ascertain whether the Ugandan order of distribution, particularly the statutory preferent claims of creditors, are aligned with international standards. The study will be concluded by determining whether there are any new classes or types of debt to be included or excluded from the Insolvency Act 2011. / Mini Dissertation (LLM)--University of Pretoria, 2019. / Mercantile Law / LLM / Unrestricted

The main aim of the sequestration process, in terms of the Insolvency Act, is to provide for a collective debt collecting process that will ensure an orderly and fair distribution of the debtor’s assets in circumstances where these assets are insufficient to satisfy all the creditor’s claims. This is to make sure that the interests of the group of creditors are protected and that one creditor is not favoured before another. The insolvent estate of a debtor may be sequestrated by himself voluntarily or one or more of his creditors may apply for the compulsory sequestration of his estate Under present South African law, the only way in which an insolvent debtor can obtain a discharge of his debts and make a fresh start is by the sequestration of his estate. Providing the debtor with debt relief is not the main aim of the Insolvency Act, but debt relief is an indirect consequence as the debtor receives a discharge of all pre-sequestration debt after rehabilitation. However, in order to obtain this discharge the sequestration of the insolvent debtor’s estate must be to the advantage of his or her creditors. In establishing this advantage for creditors in order to sequestrate one’s estate, the question is whether the balance between all the parties involved is achieved as more and more weight is being placed on this requirement. This benefit for creditors requirement has also led to abuse of the insolvency law through the development of the so called “friendly” sequestration process where the sequestrating creditor and the debtor collude together in order to bypass the stringent requirements of a voluntary surrender application. Many other jurisdictions have witnessed large scale reform of their insolvency law systems in order to address the problem of insolvencies. Notwithstanding the worldwide trend to accommodate overburdened debtors seeking debt relief, the South African insolvency system has remained largely creditor orientated. The research will discuss the current state of affairs with regard to the advantage for creditors requirement in South Africa and its impact on insolvency law. / Dissertation (LLM)--University of Pretoria, 2014. / Mercantile Law / unrestricted

This thesis seeks to contribute to our understanding of why creditors and debtors do not ordinarily use China's reformed Enterprise Bankruptcy Law ('EBL'), whether the low use of the EBL is problematic, and if so, what can be done to ensure a more efficient resolution of corporate insolvencies and corporate financial distress in China. The EBL has been lauded – domestically and internationally – as a major legislative success. However, despite the rapidly growing number of companies, level of corporate indebtedness and non-performing loans – which should, one might expect, lead to an increase in the use of the EBL – the number of court-run insolvency cases has in fact been decreasing since the law was implemented in 2007. The thesis draws on newly collected insights from a series of interviews in China - to supplement the scarce and often incoherent data that is available - to determine what motivates debtors and creditors not to use the EBL. The findings are presented as four complementary constraints on a more effective and efficient operation of the EBL. First two constraints relate to the low payoffs under the EBL that debtors and creditors expect to receive due to (i) flaws in the EBL itself and (ii) problems in surrounding non-bankruptcy rules and practices that reduce or prevent recoveries under the EBL. A third constraint affects those debtors and creditors who wish to use the EBL despite the low expected payoffs – for example to avoid directors' liability for corporate insolvency – but are prevented from doing so due to (iii) potential enforcers' limitations and biases. A fourth and final constraint on the use of the EBL that reinforces debtors' and creditors' unwillingness to use the EBL is (iv) the parties' (often inaccurate) perception that alternative debt enforcement mechanisms may offer comparatively higher payoffs (v. the EBL). Building on this discussion, the thesis then considers the desirability of, and options for, reform. It argues that reform and subsequent greater use of court-enforced insolvency law are desirable in China because the (reformed) EBL has the potential to contribute to economic development through more efficient resolution of complex financial distress; better control of bad debt; easier and cheaper corporate financing; more efficient allocation of resources; and more entrepreneurial activity. However, because the necessary changes to deliver this are likely to be slow in coming, it proposes a dual-track reform encompassing (i) substantive reform of the EBL and select non-bankruptcy laws and practices; accompanied by (ii) the introduction of a new speedy, independent and confidential mechanism for insolvency resolution, 'MedArb'.

LL.M. / The main objective of the South African interrogation procedures during corporate insolvency is to trace and recover all corporate assets. The focus of such procedures is therefore on gathering information rather than investigating any probable causes of the insolvency and failure of the company, as English legislation prescribes. At present in South Africa no reasons have to be supplied to creditors, contributors or the public to explain the failure of companies. This situation contributes to the hesitant and sceptical attitude of the public towards companies and their reluctance to invest in companies. This aspect of our insolvency law can also have a negative impact on the level of foreign investment. The question therefore arises on how the insolvency industry should deal with the various challenges that such a situation presents, which entails at the same time challenging the general effectiveness of the South African insolvency system in its entirety.

Natural person insolvency in South Africa has primarily been governed by the Insolvency Act 24 of 1936, which is almost a century old. Despite a major jurisprudential shift that transpired in 1996, the Insolvency Act remains rigid to holistic transformation to align with the spirit of the Constitution of the Republic of South Africa, 1996 and international best practices regarding the treatment of the insolvency of natural persons. The South African insolvency system is still premised on the archaic policy of “advantage for creditors” as opposed to a fresh-start policy, the latter of which is widely commendable. International trends and guidelines promote the discharge of all pre-sequestration debts, with some exceptions. These exceptions, among others, include the exclusion of maintenance debt from the discharge to ensure that the human rights of maintenance creditors are maintained and sustained. International trends and guidelines advocate for a balanced approach, which seeks to balance the competing interest of both insolvent debtors and maintenance creditors. However, the South African approach, falls-short of the international best practices, because it does not exclude maintenance debt from the discharge. This approach is dangerous and problematic, because it potentially compromises certain human rights guaranteed in the Constitution. Furthermore, maintenance claims do not enjoy any preference when the insolvent debtor’s estate is being distributed. The maintenance creditors only have a concurrent claim against the insolvent estate. The implication of this, among others, is that maintenance creditors are burdened with liability for contribution, as envisaged in section 106(c) of the Insolvency Act, should there be insufficient funds in the free residue account to cover the costs of sequestration. International trends and guidelines are leaning towards affording maintenance creditors’ claims preference, with an aim to promote the public policy of family support and human rights. The study argues that the South African position on the ranking of maintenance creditors’ claims compromises the constitutional rights of maintenance creditors and this necessitate urgent legislative attention. The violation of constitutional rights of maintenance creditors through the legal position of the discharge of maintenance obligations, and the ranking of maintenance claims, does not comply with the proportionality test, that is applied when assessing whether a violation of a right guaranteed in the Bill of Rights is justifiable and reasonable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors. / Mini Dissertation (LLM (Banking Law))--University of Pretoria, 2020. / Mercantile Law / LLM (Banking Law) / Unrestricted

Article 21 of the Insolvency Act states that the estate of the solvent spouse transfers to the curator of the insolvent spouse's sequestrated estate. The solvent spouse then has the burden to request the release of property vested in the curator of the insolvent estate. In accordance with Article 21(2), the spouse is required to prove a lawful title on the property. Should the spouse be able to prove a lawful title on the property, the curator is obligated to release the property. Although the constitutionality of this temporarily "deprivation" of the solvent spouse of her rights has already been confirmed by the Constitutional Court; it imposes drastic limitations to his/ her rights. The Insolvency Act does not incorporate procedural measures by means of which the curator has to establish whether the solvent spouse has exempted his/ her from the proof burden. In the same breath, the Constitution and the Promotion of Administrative Justice Act warrant that "everyone has the right to administrative action that is lawful. reasonable and procedurally fair." If the curator's actions, in accordance with Article 21. conform to the administrative procedures as set out in the Promotion of Administrative Justice Act, the spouse shall be entitled to administrative actions which are procedurally fair as concluded within the Promotion of Administrative Justice Act. The conclusion is proof that the actions of the curator, in accordance with Article 21 of the Insolvency Act, is indeed administrative by nature and that the solvent spouse has the right to administrative actions which is procedurally fair as prescribed in the Promotion of Administrative Justice Act, as well as the right to reasons for not being granted the release of property. / Thesis (LL.M. (Estate Law))--North-West University, Potchefstroom Campus, 2007.

Discharge as one of debt-eliminating modes of solving bankruptcy Abstract The aim of this thesis is to define the new law institute as regards insolvency law that is defined in the Act No. 182/2006 Coll., on Bankruptcy and its solution (Insolvency Law). The act came into force on 1.st January 2008. The purpose of this thesis is also to describe the practice of courts when applying afore mentioned law and specify some difficulties concerning new legislation. Discharge from debts is one of the remediation methods to resolve the debtor's bankruptcy. The idea is to allow the debtors to exempt from the payment of their debts and start new life free of debt. Discharge from debts is a tool for solving the so-called consumer bankruptcy people who are not entrepreneurs. The part of the thesis deals with the personal scope of discharge. Furthermore, it is up to the court to decide whether it discharges debtors from their debts. The basic premise is the honest intention of the debtor. Another assumption is the fact that the debtor will satisfy at least 30 percent of the claims of unsecured creditors. Discharge from the debts can be secured in two ways. The first way is to liquidate the debtor's estate and the second, is to fulfill monthly payments in five years, the second solution is often preferred by the unsecured...

Thesis (LL.M. (Estate Law))--North-West University, Potchefstroom Campus, 2007.

Article 21 of the Insolvency Act states that the estate of the solvent spouse transfers to the curator of the insolvent spouse's sequestrated estate. The solvent spouse then has the burden to request the release of property vested in the curator of the insolvent estate. In accordance with Article 21(2), the spouse is required to prove a lawful title on the property. Should the spouse be able to prove a lawful title on the property, the curator is obligated to release the property. Although the constitutionality of this temporarily "deprivation" of the solvent spouse of her rights has already been confirmed by the Constitutional Court; it imposes drastic limitations to his/ her rights. The Insolvency Act does not incorporate procedural measures by means of which the curator has to establish whether the solvent spouse has exempted his/ her from the proof burden. In the same breath, the Constitution and the Promotion of Administrative Justice Act warrant that "everyone has the right to administrative action that is lawful. reasonable and procedurally fair." If the curator's actions, in accordance with Article 21. conform to the administrative procedures as set out in the Promotion of Administrative Justice Act, the spouse shall be entitled to administrative actions which are procedurally fair as concluded within the Promotion of Administrative Justice Act. The conclusion is proof that the actions of the curator, in accordance with Article 21 of the Insolvency Act, is indeed administrative by nature and that the solvent spouse has the right to administrative actions which is procedurally fair as prescribed in the Promotion of Administrative Justice Act, as well as the right to reasons for not being granted the release of property. / Thesis (LL.M. (Estate Law))--North-West University, Potchefstroom Campus, 2007.

No abstract available. / Thesis (LLD)--University of Pretoria, 2010 / Mercantile Law / Unrestricted