What does the future hold for insolvency law and policy?

08 APR 2010

Inspired by Henrik Ibsen's 1890 play "Hedda Gabler", and in particular Ejlert Løvborg's second book in that play, as well as the Tory's "Vote for Change" mantra, I thought a blog entry on the future of insolvency law and policy might make an interesting post. What does the future hold for insolvency law and practice? Are we looking at a new Act potentially in 2012? Will the Insolvency Service delay the consolidated rules so as to cause them to come into effect at the same time? These and many other questions spring to mind.

What are the drivers of policy that might cause the future of our field to develop down any particular line and what might the instruments of that change be? I will address the former first. Elsewhere I have predicted that we might see a "Restructuring Act" in the future, as opposed to an Insolvency Act. Might the 2012 statute appear in this guise? The idea of rescue has now been with us for nearly 25 years. The Enterprise Act 2002 sought to solidify the aims engendered in the Insolvency Act 1986 (IA86). The next statute might go that step further and engender the rescue ethos in the statute's title as well as its provisions. The IA86 title does not reflect its contents either, for example, the provisions on solvent liquidation are contained in an Insolvency Act. Does this make sense?

Will bankruptcy as a regime diminish in importance as Judge Mithani QC has recently suggested? Will other procedures, such as the relatively new DRO regime gain the whip hand? Will pre-packs ever escape the taint of phoenixism? These questions and more will continue to challenge us over the coming months.

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