Lloyd's Maritime and Commercial Law Quarterly

Professor Francis D Rose

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THE EVOLUTION OF BANKRUPTCY AND INSOLVENCY LAWS AND THE CASE OF THE DEED OF COMPANY ARRANGEMENT

James Edelman,* Henry Meehan † and Gary Cheung ‡

This article considers the process of historical development of the bankruptcy and insolvency laws in the United Kingdom, the United States and Australia. The central point is to demonstrate that the process has been one of progressive liberalisation of consequences accompanied either by increased regulation or new and innovative flexible techniques of creditor involvement. We conclude the article with an examination of the operation of the deed of company arrangement, or DOCA, in Australia and a recent liberalisation involving a practitioner-led

* Justice, High Court of Australia. Adjunct Professor, Universities of New South Wales, Queensland and Western Australia. This paper has been adapted from a lecture delivered in the series “The common law and finance: perspectives from the bench”, at the University of Oxford, on 14 January 2019. I acknowledge the considerable research assistance and support of my former Associates, Henry Meehan and Gary Cheung, who are named co-authors due to their extensive research, suggestions, and discussion.

† Graduate, Herbert Smith Freehills, Brisbane. Previously, Associate, High Court of Australia.

‡ Trinity College, Cambridge. Previously, Associate, High Court of Australia.

The following abbreviations are used in the footnotes:

Allsop & Dargan: JLB Allsop and L Dargan, “The History of Bankruptcy and Insolvency Law in England and Australia”, in JT Gleeson, JA Watson and E Peden (eds), Historical Foundations of Australian Law (Federation Press, 2013), vol.2, 415;

Anderson & Morrison: Colin Anderson and David Morrison, “The Commencement of the Company Rescue: How and When Does it Start?”, in Paul J Omar (ed), International Insolvency Law: Themes and Perspectives (Ashgate, 2008) 83;

Clyne Report: Report of the Committee Appointed by the Attorney-General of the Commonwealth to Review the Bankruptcy Law of the Commonwealth (1962);

DOCA: deed of company arrangement;

GFC: global financial crisis;

Jelf: EA Jelf (ed), Encyclopaedia of the Laws of England, 3rd edn (Sweet & Maxwell, 1938), vol.2;

Fletcher: Ian F Fletcher, The Law of Insolvency, 5th edn (Sweet & Maxwell, 2017);

Friedman: Lawrence M Friedman, A History of American Law (Simon and Schuster, 1973);