Corporate Insolvency Law in the Twenty-First Century: State Imposed or Market Based?

The central premise of this article is that financial innovation and the ever increasing complexity of proprietary entitlements necessitate a principled recalibration of the boundaries of regulation and contract in corporate insolvency law, a recalibration that is already under way. Through the lens of a combination of “commons/anti-commons analysis” and “contractualisation of bankruptcy” models, the article critically analyses recent developments at European and domestic level, in particular the development and reform of the concept of centre of main interest, the rise of pre-packaged administrations and the reformulation of the anti-deprivation principle. The adopted theoretical framework explains and justifi es these developments and provides some guidance for future reform efforts.

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