Bankruptcy-remote transactions and bankruptcy law : a comparative approach (part 2): can parties validly waive bankruptcy proceedings? Articles uri icon

publication date

  • June 2015

start page

  • 362

end page

  • 389

issue

  • 3

volume

  • 10

international standard serial number (ISSN)

  • 1750-7219

electronic international standard serial number (EISSN)

  • 1750-7227

abstract

  • Bankruptcy-remote transactions are complex but no longer rare. Sophisticated parties use them to avoid bankruptcy proceedings. Considering that bankruptcy law is mandatory, is that legal? This article explores the answer to this question. Since parties in bankruptcy-remote transactions achieve a bankruptcy waiver through a complex combination of contractual tools, the approach by courts will depend on whether they answer a specific question, or see the full picture of what the parties are trying to achieve. The article also draws some lessons on the relative importance of bankruptcy/insolvency law and the rights of private parties in relation to it.

keywords

  • bankruptcy
    insolvency
    securitization
    waiver mandatory