Ph.D/D.Phil treatment on the history of insolvency - a neglected source?

02 MAR 2009

Dr Christopher Symes' recent book entitled, Statutory Priorities in Corporate Insolvency Law - An Analysis of Preferred Creditor Status (Ashgate, 2008), highlights a recurrent problem in bankruptcy and insolvency scholarship particularly in relation to the historical aspects of the subject. I have briefly discussed this issue before, or at least highlighted some relevant sources. The problem is that insolvency scholars (and practitioners) seem to think that the history of bankruptcy and insolvency scholarship starts with Professor Markham Lester’s D.Phil thesis, which was subsequently published by OUP as Victorian Insolvency (Clarendon, 1995). This is simply incorrect and many valuable contributions are being overlooked, most of which pre-date Professor Markham Lester’s treatment in terms of publication date and period of treatment. There are a number of substantial works that cover the medieval period, the early modern period including the 16th, 17th, and 18th centuries and finally the 19th century. The work is both comparative and domestic in perspective. My own forthcoming work examines aspects of the 17th century. The following extremely valuable Ph.D./D.Phil and LL.M. degree contributions are obtainable fairly easily through the inter-library loan service:

  • Cadwallader, FJJ. In pursuit of the merchant debtor and bankrupt: 1066-1732. Unpublished Ph.D. thesis. University College London, University of London. June 1965.
  • Cooke, RM. The Foundations of the Law of Bankruptcy. University of Manchester, LL.M. thesis. 1924.
  • Coull, DC. The Prevention of Fraud prior to bankruptcy – a comparative study. Unpublished Ph.D. thesis. University of Aberdeen, 1974.
  • Hertzler, JR. The Reform of Imprisonment for Debt during the Interregnum and Later Stuart Periods. Unpublished University of Wisconsin Ph.D. dissertation, Madison, I967.
  • Servian, MS. Eighteenth Century Bankruptcy Law: From Crime to Process. Unpublished Ph.D. thesis, University of Kent at Canterbury, 1985.
  • Treiman, I. A History of the English Law of Bankruptcy, with Special Reference to the Origins, Continental Sources , and Early Development of the Principal Features of the Law. University of Oxford. Unpublished D.Phil thesis. 1927.

Duffy's book also stems from his own Ph.D. thesis: Duffy, IPH. Bankruptcy and Insolvency in London during the Industrial Revolution. Garland Publishing, Inc. New York & London. 1985. A slightly earlier treatment was also published by Noel (Noel, FR. A History of the Bankruptcy Law. C. H. Potter & co., 1919).

There are also of course a number of insolvency Ph.D./D.Phil contributions on aspects of modern insolvency law which, like Victorian Insolvency, have subsequently been published as books. Professor Riz Mokal, Dr Irit Mevorach, Professor Rebecca Parry (all published by OUP) and Dr Paul Omar have all seen their Ph.Ds (D.Phil in Dr Omar's case) go into print and Professor Ian F. Fletcher’s The Law of Insolvency, about to be published in its fourth edition, can also trace its origins back to his own Ph.D. Insolvency Ph.Ds have also been awarded to Dr. Keith Pond ('Investigating personal insolvency: a progression of studies into individual voluntary arrangements') and Dr. Peter Walton ('Priority rights of creditors in insolvency') on the basis of cumulative refereed article contribution to the subject. There are a number of other English and Welsh insolvency law doctoral contributions which discuss modern insolvency law and related issues:

  • Abeyratne, Mahawattege Don Hemantha Niranjan. Corporate rescues: a comparative study of the law and procedure in Australia, Canada and England. University of London, 1996.
  • Carapeto, Maria.  Essays on Chapter 11: debtor-in-possession financing and bankruptcy bargaining. University of London, 2000.
  • Constantinides, Sylvia.  Going-concern assessments for financially distressed firms: a comparative study of auditors, bankers and insolvency practitioners. University of Nottingham, 2002.
  • Derham, S.R. The law of set-off in bankruptcy and company liquidation. University of Cambridge, 1985. 
  • El Borai, Rami. Cross-border corporate insolvency : a modest proposal for an enhanced international approach. University of London, 2006.
  • Evans, Simon Charles. Proprietary remedies in insolvency. University of Cambridge, 1996. 
  • Frisby, Sandra. The law and practice of contractual receivership. University of Nottingham, 2000.
  • Hacker, Birke. Consequences of Impaired Consent Transfers: A Structural Comparison of English and German Law. University of Oxford, 2007. 
  • Hammouri, M. K. K. The Rights of a Principal and of General Creditors in the Bankruptcy of an Agent - The Methods and Solutions in English and Egyptian Law. University of Cambridge, 1975.
  • Kingdom, Ioannis. Three essays on personal bankruptcy. University of Southampton, 2006.
  • Leith, Campbell Blair. Four essays on monetary and fiscal policy and an investigation on the impact of insolvency risk on aggregate investment. University of Exeter, 1999. 
  • Lennox, Clive Steven. Bankruptcy, audit reporting and auditor choice. University of Oxford, 1998.
  • Olima, Bevlyn Loren Anyango.  Reducing the incidence of bankruptcy: a way forward. University of Wolverhampton, 2006.
  • Ozkan, Aydin.  Costs of financial distress and capital structure of firms. University of York, 1996.
  • Pasban, Mohammad Reza. Directors duties and liabilities in corporate insolvency in England and the US. University of Sheffield, 1996.
  • Pryce-Brown, Timothy John. Wrongful trading and the standard of skill and care for corporate directors: a comparative study of corporate governance. University of Glamorgan, 1998.
  • Stelzer-O'Neill, Barbara. The losses suffered by creditors in bankruptcy in the UK and Germany. City University, 1991.
  • Tajarloo, Rez. Avoidance of antecedent transactions in English corporate insolvency law. University of Essex, 2005.
  • Wee, Meng Seng. Contracts and corporate insolvency proceedings. University of Oxford, 2002.
  • Yates, Elizabeth. Winding up and insolvency of charities: including rescue mechanisms. University of Liverpool, 1999.
  • Zhu, Rong. Comparing statistical methods and artificial neural networks in bankruptcy prediction. University of Warwick, 1997.

As long as the historical Ph.D/D.Phil sources are ignored we will have an unsatisfactory perception of the treatment of the history of the subject as well as the treatment itself. Additionally, the work of Hoppit, Jones, Graham, Tabb, Riesenfeld, Kadens and others must also be borne in mind when dealing with the history of the subject. The best current treatment which is contained in an easily accesible published book is Professor David Milman's overarching treatment in Personal Insolvency Law, Regulation and Policy (Ashgate, 2005).

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