South Africa has a dualistic system of insolvency law, which means that individual and corporate insolvency is dealt with in separate statutes. The purpose of this study is to propose a framework for corporate insolvency law reform, with a view to introducing a single insolvency statute in South Africa. In determining the reasons for the separate development of individual and corporate insolvency in South Africa, research is conducted into the historical development of both individual and corporate insolvency law. Although corporate insolvency is supplemented by the substantive rules of individual insolvency, the existence of separate statutes regulating individual and corporate insolvency has resulted in the separate development, and resultant fragmentation, of South African insolvency law. In determining why some countries have been more successful than others in introducing a unified insolvency statute, a brief comparative study is undertaken in respect of the insolvency regimes that apply in England, Australia, Germany and the United States. Research is then conducted into the possibility of introducing a unified insolvency statute in South Africa. Having determined that the underlying problem of a dualistic system is the fragmentation of the regulatory statutes, the remainder of the thesis is devoted to making proposals for the introduction of a unified statute. In proposing a unified insolvency statute the following critical issues are addressed: the definition of "debtor" for the purposes of a unified statute; whether a unified statute should also address the liquidation of specialised institutions such as banks; liquidation applications; the commencement of liquidation; the vesting of the insolvent estate; whether ancillary matters such as alternatives to liquidation, insolvent deceased estates, business rescue provisions, compromises, personal liability provisions and cross-border insolvencies should be included in such a statute; and revised provisions in regard to voluntary liquidations by resolution. The conclusion that is reached, is that it is in fact possible to substantially unify all the provisions relating to individual and corporate insolvency law in South Africa into a single statute. This conclusion is reached by means of a draft Insolvency and Business Recovery Bill, and is included as part of the conclusion to the thesis. / Thesis (LLD)--University of Pretoria, 2004. / Mercantile Law / unrestricted

Eligible insolvency petition is the only way how to initiate insolvency proceedings and therefore to achieve the highest and usually proportional satisfaction of creditors claims of the debtor. The quality of administered insolvency petitions according to actual statistics may not match the requirements set out by the Insolvency Act and the decision-making practice of the courts. Because of this fact, my goal was mainly to point out the repetitive mistakes, which are made by insolvency petitors in administation, to define the particulars of such petitions, and to provide the instruction how to give the eligible petition for consideration. My diploma thesis is divided into five chapters, where there is a gradual refinement of the requirements for insolvency petition. The first part includes basic definition of decline and impending bankruptcy when these institutions are a precondition for the commencement of insolvency proceedings and insolvency petitioner in its proposal must say that the debtor is insolvent, or that it may threaten him. The second chapter defines the decision of insolvency petition to be sure how the insolvency court may respond to such petitions, there is also a defined responsibility of insolvency petitioner for submission of undiscussed petition. The third chapter refers to...

Conditions for adjudication of bankruptcy The purpose of my thesis is to analyse conditions for adjudication of bankruptcy. My thesis is composed of nine chapters, each of them dealing with different aspects of the conditions for adjudication bankruptcy. Chapter One is an introduction and defines my motivation for writing about conditions for adjudication of bankruptcy. I have chosen this topic because I'm interested in the issue of insolvency law. In my opinion, this is really an up to date topic, as there are recently more and more people and companies which are in financial trouble. Chapter Two is subdivided into two subchapters. Subchapter One defines the term of bankruptcy and the development of its meaning over the years. Subchapter Two describes the systematic of the Insolvency Act (Act No. 182/2006 Coll. On Insolvency and its Settlement Methods) and explains the classification of bankruptcy within the Act. Chapter Three covers the historical development of the conditions, starting in 1781 with Josephine Bankruptcy Act. It provides a short illustration of the transformation in the conditions for adjudication of bankruptcy over the past years. Chapter Four characterises the conditions for adjudication of bankruptcy and enumerates them. This chapter generally divides the conditions to the substantive...

Reorganization in the new Czech insolvency law with respect to the US law Summary The purpose of my thesis is to analyse reorganization as an institute of the new Czech insolvency law and its relation to the US insolvency legal regulations. The thesis is composed of 11 main chapters, majority of them relating to the reorganization process and its particular subjects. Chapter One is introductory and defines the purpose of the thesis as well as its limits. The next two chapters give a brief introduction on the insolvency law history in both countries in order to highlight the underlying differencies of both economics. These chapters also addresse the current legal status of insolvency law with emphasis on the recent legislation changes and their relation to economical and social changes. Chapter Four lists the main subjects to the insolvency procedure with emphasis on reorganization and defines basic terminology to enable a better understanding of the reorganization. It is followed by a chapter Five describing the reorganization institute in detail incorporating an outline of relevant Czech case law. Each of the following four chapters represents an important milestone of the reorganization process and is further subdivided in particular stages in order to enable a better understanding of the process as well...

Barbados enacted the Bankruptcy and Insolvency Act in the year 2001. This Act is based entirely on the Canadian Bankruptcy and Insolvency Act. Barbados reformed its bankruptcy and insolvency laws in order to offer greater protection to debtors while simultaneously protecting creditors from fraud. Additionally, the new reforms were designed to remove the stigma that attaches to insolvent and bankrupt individuals and businesses and to make Barbados a more attractive destination for the creation of and investment in new businesses. Despite the existence of a legislative framework designed to assist debtors and creditors only five matters have been initiated under the Barbados Act. In this thesis I examine why there has been reluctance to rely on the Act. Ultimately, I conclude that the bankruptcy and insolvency regime that exists in Barbados is ineffective and lacks many of the features that are necessary for the efficient administration of bankruptcies and insolvencies.

Barbados enacted the Bankruptcy and Insolvency Act in the year 2001. This Act is based entirely on the Canadian Bankruptcy and Insolvency Act. Barbados reformed its bankruptcy and insolvency laws in order to offer greater protection to debtors while simultaneously protecting creditors from fraud. Additionally, the new reforms were designed to remove the stigma that attaches to insolvent and bankrupt individuals and businesses and to make Barbados a more attractive destination for the creation of and investment in new businesses. Despite the existence of a legislative framework designed to assist debtors and creditors only five matters have been initiated under the Barbados Act. In this thesis I examine why there has been reluctance to rely on the Act. Ultimately, I conclude that the bankruptcy and insolvency regime that exists in Barbados is ineffective and lacks many of the features that are necessary for the efficient administration of bankruptcies and insolvencies.

The advent of popular capitalism has initiated many debates surrounding the role of the corporations and their officers both in the UK and the international community. In particular, the relationship of the director with his shareholders, creditors, employees and the broader community have been subject to greater scrutiny. This has developed the concept of the "director corporation" and redefined their role and objective in relating to all the nexus groups within and without the corporation. The objective of each nexus group will invariably differ and even involve conflict with others in the same corporate entity. The role of the law in formulating new standards of directors' duties and creating general objectives for the corporation is to seek to balance all interests within the corporate nexus. Insolvency law in England and Wales has been harnessed to achieve some progress in raising standards of director behaviour. With its unique evolution English insolvency law is seen not just as an efficient means of liquidating company assets. It is also a basis for providing the commercial world with legal devices which 'punish' those in that community who fall short of the standard of care demanded by the ever broadening shareholder base. The position is clarified by Peter Totty, a partner in Alien & Overy who, commenting on the Insolvency Service stated: "Insolvency law ... underpins all commercial law."' In the far reaching legislative reform programmes illustrated in the Companies Acts 1985, 1989 the Insolvency Acts 1986, 1994, The Company Directors Disqualification Act 1986 and the Royal Commission Report which led to the Acts2 the importance of policing directors and of developing their duties becomes increasingly apparent. The objective of this thesis is to analyse and explain the reasons for the particular development of section 214 IA 1986 and the broadening of its remit in the area of governance. In this respect I shall attempt to place in perspective its ability to act as a policing measure against the misconduct of directors in a society which is increasingly characterised by mass incorporation of business and the establishment of an entrepreneurial ethos.

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

The dissertation considers the justification of the stringent natural person insolvency system in light of the “advantage to creditors” requirement. Jackson’s (The Logic and Limits of Bankruptcy Law (1986) 3) criteria of “what is being addressed” by the South African natural person insolvency law system, and why that which is being addressed, is a “proper concern” of the South African system, is used as to assess the system. It is established that the South African natural person insolvency law system is a system which favours the protection of the interest of creditors. The international trend towards more debtor-orientated insolvency law systems, has become the topic of academic discussion, with the South African insolvency law system harsh criticised for not developing in line with this trend. It can be safe to state that academics, in analysing the South African insolvency law system, have discovered a “problem” with the South African system and are approaching their insolvency analyses by viewing the South African system as conflicting with or overriding some social or economic goal due to the fact that it has not necessarily developed in line with the international systems. In terms of the criteria established by Jackson for insolvency analyses, it can be argued that this approach is fundamentally flawed. The analysis in this dissertation is not undertaken for the purpose of identifying discrepancies or differences between the South African system and other natural person insolvency law systems found in foreign jurisdictions, but rather for the purpose of analysing the South African system against criteria distinctive to the purpose of its creation. Accordingly, to proceed with this analysis, one has to applying Jackson’s criteria and identify “what is being addressed” and why that which is addressed is a “proper concern” of the natural person insolvency law in South Africa. Against this background, it is possible to analyse the stringent South African natural person insolvency law system in light of the “advantage to creditors” requirement in a sound manner. / Dissertation (LLM (Insolvency Law))--University of Pretoria, 2020. / Jurisprudence / LLM (Insolvency Law) / Unrestricted