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Article: Rights in Rem, Article 5 and the EC Insolvency Regulation: an English Perspective

TitleRights in Rem, Article 5 and the EC Insolvency Regulation: an English Perspective
Authors
Issue Date2006
PublisherJohn Wiley & Sons Ltd. The Journal's web site is located at http://eu.wiley.com/WileyCDA/WileyTitle/productCd-IIR.html
Citation
International Insolvency Review, 2006, v. 15 n. 1, p. 17-55 How to Cite?
AbstractThe treatment of security interests is central to any insolvency régime, national or transnational. Under Article 5 of the EC Regulation on Insolvency Proceedings (E.C. 1346/2000) extensive protection is given to a security interest—or right in rem—over assets of the debtor situate in a Member State other than one in which insolvency proceedings have been opened. The absence, thus far, of any significant body of European case law on Article 5, allows commentators to put forward a range of views on how Article 5 ought to be applied. This article aims to examine the scope of Article 5 protection both conceptually and in terms of illustrations drawn largely from English insolvency law and practice. Particular attention is given to the following issues: what is meant by the ‘opening of insolvency proceedings’ with reference to Article 5; when a liquidator may pay off the holder of a right in rem; whether the rules under the Regulation for determining the situs of an asset alter the English common law position; whether Article 5 prohibits the discharge of an underlying debt by way of a restructuring plan; the position of unsecured creditors who attempt to acquire rights in rem prior to the opening of insolvency proceedings; and whether the English court's equitable jurisdiction to enforce a charge which does not comply with the lex situs, survives the coming into force of the Regulation. Through the discussion of these topics, this article seeks to identify an approach to the interpretation of Article 5 which is consistent not only across the wide range of issues identified but also with the broad policy objectives underlying the treatment of in rem rights in the Regulation. Copyright © 2006 John Wiley & Sons, Ltd.
Persistent Identifierhttp://hdl.handle.net/10722/205673
ISSN
2015 Impact Factor: 0.273
2015 SCImago Journal Rankings: 0.101

 

DC FieldValueLanguage
dc.contributor.authorSmart, P-
dc.date.accessioned2014-09-30T04:39:30Z-
dc.date.available2014-09-30T04:39:30Z-
dc.date.issued2006-
dc.identifier.citationInternational Insolvency Review, 2006, v. 15 n. 1, p. 17-55-
dc.identifier.issn1180-0518-
dc.identifier.urihttp://hdl.handle.net/10722/205673-
dc.description.abstractThe treatment of security interests is central to any insolvency régime, national or transnational. Under Article 5 of the EC Regulation on Insolvency Proceedings (E.C. 1346/2000) extensive protection is given to a security interest—or right in rem—over assets of the debtor situate in a Member State other than one in which insolvency proceedings have been opened. The absence, thus far, of any significant body of European case law on Article 5, allows commentators to put forward a range of views on how Article 5 ought to be applied. This article aims to examine the scope of Article 5 protection both conceptually and in terms of illustrations drawn largely from English insolvency law and practice. Particular attention is given to the following issues: what is meant by the ‘opening of insolvency proceedings’ with reference to Article 5; when a liquidator may pay off the holder of a right in rem; whether the rules under the Regulation for determining the situs of an asset alter the English common law position; whether Article 5 prohibits the discharge of an underlying debt by way of a restructuring plan; the position of unsecured creditors who attempt to acquire rights in rem prior to the opening of insolvency proceedings; and whether the English court's equitable jurisdiction to enforce a charge which does not comply with the lex situs, survives the coming into force of the Regulation. Through the discussion of these topics, this article seeks to identify an approach to the interpretation of Article 5 which is consistent not only across the wide range of issues identified but also with the broad policy objectives underlying the treatment of in rem rights in the Regulation. Copyright © 2006 John Wiley & Sons, Ltd.-
dc.languageeng-
dc.publisherJohn Wiley & Sons Ltd. The Journal's web site is located at http://eu.wiley.com/WileyCDA/WileyTitle/productCd-IIR.html-
dc.relation.ispartofInternational Insolvency Review-
dc.rightsInternational Insolvency Review. Copyright © John Wiley & Sons Ltd.-
dc.rightsSpecial Statement for Preprint only Before publication: 'This is a preprint of an article accepted for publication in [The Journal of Pathology] Copyright © ([year]) ([Pathological Society of Great Britain and Ireland])'. After publication: the preprint notice should be amended to follows: 'This is a preprint of an article published in [include the complete citation information for the final version of the Contribution as published in the print edition of the Journal]' For Cochrane Library/ Cochrane Database of Systematic Reviews, add statement & acknowledgement : ‘This review is published as a Cochrane Review in the Cochrane Database of Systematic Reviews 20XX, Issue X. Cochrane Reviews are regularly updated as new evidence emerges and in response to comments and criticisms, and the Cochrane Database of Systematic Reviews should be consulted for the most recent version of the Review.’ Please include reference to the Review and hyperlink to the original version using the following format e.g. Authors. Title of Review. Cochrane Database of Systematic Reviews 20XX, Issue #. Art. No.: CD00XXXX. DOI: 10.1002/14651858.CD00XXXX (insert persistent link to the article by using the URL: http://dx.doi.org/10.1002/14651858.CD00XXXX) (This statement should refer to the most recent issue of the Cochrane Database of Systematic Reviews in which the Review published.)-
dc.titleRights in Rem, Article 5 and the EC Insolvency Regulation: an English Perspectiveen_US
dc.typeArticleen_US
dc.identifier.emailSmart, P: psmart@hkucc.hku.hk-
dc.identifier.doi10.1002/iir.135-
dc.identifier.hkuros123400-
dc.identifier.volume15-
dc.identifier.issue1-
dc.identifier.spage17-
dc.identifier.epage55-
dc.publisher.placeUnited Kingdom-

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