This thesis pursues the following objectives: to explain multistate insolvency theories in terms of private international law scholarship and to address comprehensively the private international law aspects of insolvency. It does so through a detailed development and evaluation of an approach to multistate insolvency that structures preferred responses to forum, the recognition and enforcement of foreign orders and choice of law around the centre of principal interests in the debtor's insolvency ('the principal interests approach').
The principal interests approach addresses bankruptcy and liquidation in the context of multistate business insolvencies. It highlights the competing interests that must be balanced once a business moves from a going concern to one which is being managed as a collective administration by an insolvency office holder. These interests include not only those of the immediate parties of debtor and (likely) petitioning creditor, but also the collective body of voluntary and involuntary creditors and third parties from various states as well as the interests of the states themselves.
Insolvency by its very nature signifies that the value of the debtor's estate will be inadequate to meet all the claims upon it. Thus efficient realisation is required and while this may indicate a single, universally recognised administration in the centre of principal interests in the debtor's insolvency, it may in fact require concurrent proceedings in the jurisdictions with which the insolvent debtor has a sufficient connection. The tension inherent in balancing the interests of the various parties in the context of a collective administration is recognised in the allocation of the proper forum, the limited acceptance of concurrent proceedings and the reciprocity advocated in recognition and enforcement of these orders, as well as the law to be applied in the various insolvency proceedings.
The thesis is developed through three parts. Part I describes the context for the legal issues and diverse interests raised by multistate insolvency and the theoretical responses to these. It also outlines the principal interests approach and places it in the overall spectrum of multistate insolvency theory. Part II addresses the significant multistate insolvency issues of jurisdiction and recognition and enforcement of judgments. Part III applies the various choice of law approaches to multistate insolvency.
On jurisdiction, the principal interests approach identifies the proper forum for commencing a collective administration of a debtor's estate by taking into account the various competing interests within the context of the parties' or the dispute's relationship with the forum. Such centre of principal interests in the debtor's insolvency, which relies upon the concepts of habitual residence and place of incorporation or of management control, is the appropriate venue for the principal administration. Concurrent proceedings, in the form of coordinated ancillary insolvency administrations or auxiliary proceedings with local effect, may also be appropriate where the business debtor has a sufficient connection with more than one jurisdiction. Recognition and enforcement of such foreign orders, based on notions of reciprocity and comity and acknowledgment of the sufficient connections, are advocated to achieve symmetry in the exercise of jurisdiction and any consequent multistate effects. In its choice of law to be applied in these proceedings, the principal interests approach, through its analysis of the legal situation dealt with in an insolvency, identifies the 'seat' of that legal relationship as the centre of principal interests in the debtor's insolvency and, subject to a public policy discretion, its law is the law of the cause.