International Law Civil Law and English Common Law Countries Questions
Description
ANSWER ALL THE QUESTIONS
QUESTION 1 (multiple-choice questions) [10 marks in total]
Questions 1.1. ®bsp;1.10. are multiple-choice questions designed to assess your ability to think critically about the subject. Please read each question carefully before reading the answer options. Be aware that some questions may seem to have more than one right answer, but you are to look for the one that makes the most sense and is the most correct. When you have a clear idea of the question, find your answer and mark your selection on the answer sheet by highlighting the relevant paragraph in yellow. Select only ONE answer. Candidates who select more than one answer will receive no mark for that specific question.
Question 1.1
Civil Law and English (Common) Law countries have the same historical roots. Select from the following the best response to this statement.
- This statement is untrue because English Insolvency Law developed from Roman law principles, and Civil Law Systems were based on the statute of Marlborough of 1267.
- This statement is untrue since Civil Law developed from early Roman law principles relating to debt recovery and English Insolvency Law developed via legislation, especially from the 16th century onwards.
- This statement is true since, on a principle basis, the developments of insolvency law as a system is the same in all systems.
- The statement is true since both systems developed from a pro debtor approach towards the notion of over-indebtedness.
Question 1.2
Both Civil Law and English Law systems in general allowed for a rather liberal discharge of debt for over-indebted debtors right from the inception of these systems. Select from the following the best response to this statement.
(a)This statement is untrue since in both systems the notion of discharge only developed at a later stage.
(b)This statement is true since in both systems insolvency and rehabilitation procedures developed with discharge as a way of departure.
(c)This statement is untrue since discharge of debt never became part of any of these systems.
(d)This statement is true since creditors in both systems had an accommodative approach towards over-indebted debtors.
Question 1.3
England and America each have their own single unified piece of insolvency legislation which apply to both personal and corporate insolvency. Select from the following the best response to this statement.
(a)This statement is true since England has the unified 1986 Insolvency Act and the USA has the 1978 Bankruptcy Code. Both Acts cover personal and corporate insolvency.
(b)This statement is untrue since in England the Insolvency Act 1986 deals only with personal insolvency.
(c)This statement is untrue because the USA has separate Acts dealing with corporate liquidation and rescue.
(d)The statement is true since in England its companies®bsp;legislation deals with corporate insolvency and rescue.
Question 1.4
There are no good reasons to distinguish between insolvency rules pertaining to individuals (consumers, natural person debtors, also referred to as personal insolvency) and those insolvency rules applying to corporations or companies since in both instances the applicable insolvency rules are intrinsically collective in nature. Select from the following the best response to this statement.
(a)The statement is true since global insolvency law systems provide exactly the same rules to cover all aspects of insolvency in both instances, ie personal insolvency and corporate insolvency.
(b)The statement is untrue since there are pertinent differences in the treatment of certain aspects in insolvency of an individual and that of a company, like the fact that individuals are not )ssolved®bsp;after their estate assets have been liquidated as is the case once the assets of a company have been liquidated and it is finally wound up.
(c)The statement is untrue since insolvency law rules are not collective in nature.
(d)The statement is true since insolvent companies usually survive their liquidation and may continue to conduct business after the debt has been discharged through the liquidation process.
Question 1.5
All countries have one and the same set of rules to apply in the case of recognition of a foreign insolvency order. Select from the following the best response to this statement.
- The statement is untrue since the systems differ and some countries have no formal cross-border insolvency rules in place at all.
- This statement is true because all member states of the UN have adopted the UNCITRAL Model Law on Cross-Border Insolvency.
- This statement is true because the UNCITRAL Model Law on Cross-Border Insolvency applies directly to all UN member States.
- This statement is true since the International Court of Justice has a set of global cross-border insolvency principles that apply globally.
Question 1.6
The domestic corporate insolvency laws of a particular country make no mention of the possibility of a foreign element in a liquidation commenced locally. There is also no locally applicable treaty or convention on insolvency proceedings in place.
In a local liquidation commenced in that country, to what other area of domestic law can the local court refer in order to resolve an insolvency related international law issue that has arisen because of concurrent insolvency proceedings over the same debtor in a different country?
(a)Public International Law.
(b)UNCITRAL Legislative Guide on Insolvency Law.
(c)World Bank Principles for Effective Insolvency and Creditor Rights Systems.
(d)Private International Law.
Question 1.7
Private international law raises questions of the conclusive effect of a foreign judgment and the enforcement of a foreign judgment. A German court has issued a judgment in a German insolvency which has a connection with England. The foreign insolvency office holder seeks recognition and enforcement in an English court of the insolvency order made in the German insolvency proceedings.
Which of the following statements, concerning the request for recognition and enforcement in England, is true?
(a)The English Court hearing the request for recognition and enforcement may apply the EU Recast Insolvency Regulation (2015).
(b)It is relevant factor for the English Court hearing the matter to consider whether Germany has adopted the UNCITRAL Model Law on Cross-border Insolvency 1997, or not.
(c)The English Court will be able to consider the request based on its 2006 Insolvency Regulations (the adopted UNCITRAL Model Law on Cross-Border Insolvency) and / or common law principles.
(d)The German order will be automatically recognised in England due to a cross-border insolvency treaty between England and Germany.
Question 1.8
Which of the following best describes international insolvency law?
(a)It is public international law governing insolvency law between States.
(b)It is private international law governing insolvency law between States.
(c)It may involve aspects of both public international law and private international law.
(d)It involves a simple classification within either public international law or private international law.
Question 1.9
To date, the most successful soft law approach to international insolvency law issues has been the Model Law on Cross-border Insolvency. Select from the following the best response to this statement.
(a)This statement is untrue because not all States have adopted the Model Law on Cross-border Insolvency.
(b)This statement is untrue because of the requirement for reciprocity in relation to the Model Law on Cross-border Insolvency.
(c)This statement is true because the Model Law on Cross-border Insolvency creates regulations which binds each State and has been the most influential response to international insolvency law issues.
(d)This statement is true because the Model Law on Cross-border Insolvency has been adopted by numerous States and is gaining momentum as an influential response to international insolvency law issues.
Question 1.10
Latin American States have some of the most long-lasting multilateral agreements regarding international insolvency issues. Select from the following the best response to this statement.
(a)This statement is untrue because the Bustamante Code was concluded in 1928, which was only a few years before the Nordic Convention of 1933.
(b)This statement is untrue because North America was not a party to these agreements.
(c)This statement is true because agreements such as the EscazZ¢sp;Agreement have been extremely long lasting.
(d)This statement is true because of agreements such as the Montevideo Treaties and Havana Convention on Private International Law.
QUESTION 2 (direct questions) [10 marks]
Question 2.1 [maximum 3 marks]
Briefly indicate the historical roots of the various insolvency law systems to be found in African jurisdictions.
[Type your answer here]
Question 2.2 [maximum 3 marks]
Indicate what important events and / or developments gave rise to some insolvency law reform in Eastern Asia and provide two examples of such reform initiatives.
[Type your answer here]
Question 2.3 [maximum 4 marks]
Briefly indicate the various initiatives undertaken to assist with the resolution of international insolvency issues between North America and Canada and the success or otherwise of these initiatives.
[Type your answer here]
QUESTION 3 (essay-type questions) [15 marks in total]
Question 3.1 [maximum 5 marks]
It is said that one of the difficulties in designing a proper cross-border insolvency dispensation is the fact that domestic insolvency laws and approaches towards insolvency in various jurisdictions are not the same and in fact sometimes differ vastly. Discuss the possible historical reasons for the difference in approaches regarding the treatment of voidable dispositions, given the way such rules developed in English law and civil law jurisdictions respectively. In your answer you must provide a context or framework for the treatment of these rules in insolvency systems and indicate why these rules are important in insolvency.
[Type your answer here]
Question 3.2 [maximum 5 marks]
A Dutch commentator on international insolvency law defines international insolvency law as that part of the law that:
é]s commonly described in international literature as a body of rules concerning certain insolvency proceedings or measures, which cannot be fully enforced, because the applicable law cannot be executed immediately and exclusively without consideration being given to the international aspect of a given case./p>
However, the author concedes that this definition has limitations. Briefly discuss the reasons why the definition is perceived to have limitations.
[Type your answer here]
Question 3.3 [maximum 5 marks]
Briefly discuss treaties or conventions as a source for cross-border insolvency law. In your answer you should also indicate if these are viewed as a successful way in establishing such rules by providing examples in this regard.
[Type your answer here]
QUESTION 4 (fact-based application-type question) [15 marks in total]
Flor Prim Pty Ltd (FPPL) is a company incorporated with its head office and significant operations in Encanto as well as being registered as a foreign company in Asgard, where it also carries on business. FPPL therefore carries on business in more than one State. Lobo Lending Ltd (Lobo) is incorporated and has its head office in Asgard.
FPPL is managing to meet its debts as they fall due in Encanto. However, due to various staffing issues combined with market turndown in Asgard, FPPL is struggling financially in Asgard. FPPL has fallen behind with payments due and owing to Lobo. FPPLænbsp;CEO approaches Lobo to discuss possible informal payment arrangements.
If you require additional information to answer these questions, briefly state what it is and why it is relevant.
Question 4.1 [Maximum 5 marks]
What are the main differences between ¯rmal®bsp;insolvency proceedings and nformal®bsp;insolvency arrangements? What key advantages and disadvantages should Lobo consider regarding any informal out-of-court workout arrangement it could enter with FPPL, compared with its formal debt recovery options?
[Type your answer here]
Question 4.2 [Maximum 5 marks]
Assume that instead of the scenario described above, Lobo obtained a formal court order against FPPL for a court-supervised insolvency proceeding in Asgard. The Asgardian insolvency representative then discovered there was already a concurrent insolvency proceeding commenced against FPPL in Encanto. Detail difficulties that may arise for the insolvency representative pertaining to co-operation and co-ordination and the international insolvency instruments that have been developed to assist with respect to those difficulties. In your answer make sure to comment as to whether the development of these international insolvency instruments is important and why, or why not.
[Type your answer here]
Question 4.3 [Maximum 5 marks]
Assume that instead of the hypothetical facts mentioned above, FPPL is an incorporated company with offices in the UK, and throughout Europe and other non-European countries. Lobo is its major creditor and is incorporated in a country in Europe. An insolvency proceeding against FFPL was opened in the UK by a minor creditor on 30 June 2022. A month later, Lobo was considering also opening proceedings in another country in Europe. Discuss whether the European Insolvency Regulation Recast would apply with respect to the UK commenced insolvency proceedings, and the consequences of same. In answering this question set out what further information, if any, you might need.
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