Vulnerability theory and insolvency law

Book chapter


Gant, J. 2023. Vulnerability theory and insolvency law. in: Ghio, E., Wood, J. and Gant, J. (ed.) Re-examining Insolvency Law and Theory Perspectives for the 21st Century Cheltenham Edward Elgar Publishing. pp. 166–188
AuthorsGant, J.
EditorsGhio, E., Wood, J. and Gant, J.
Abstract

A stakeholder approach to insolvency and corporate rescue law is not new. However, this approach has often been limited to those stakeholders who have contractual connections to the corporate entity in financial distress, ignoring some of the most significantly affected and least protected stakeholders impacted by a company’s financial distress, e.g., involuntary creditors and employees. Martha Fineman’s vulnerability theory provides a new perspective that places the human at the heart of the law, which requires a full paradigm shift when it comes to our thinking around the aims and purposes of insolvency and corporate rescue and how fairness should be assessed and protected. This chapter explores the key concepts involved in such paradigm shift with a view to creating a new theoretical framework based in vulnerability theory within which fairness toward a variety of stakeholders can be tested and achieved in treatment, priorities, and distribution from within collective processes. This approach offers a much-needed adjustment to the theoretical underpinning of global insolvency systems to place the human at the centre of the matter and challenges the traditional views of corporate financial distress and the categorical and fragmented approach traditional processes tend to take for its resolution. Vulnerability stands as a challenge to the traditional law and economics approaches to resolving corporate financial distress and builds upon the communitarian and traditionalist approaches promoted by academics such as Elizabeth Warren and Donald Korobkin with a view to creating measurable tests that will recalibrate fairness towards all stakeholders from a basis of equity.

Keywordsinsolvency ; corporate rescue law; financial distress
Page range166–188
Year2023
Book title Re-examining Insolvency Law and Theory Perspectives for the 21st Century
PublisherEdward Elgar Publishing
Place of publicationCheltenham
ISBN9781803928753
Digital Object Identifier (DOI)https://doi.org/10.4337/9781803928760.00017
https://doi.org/10.4337/9781803928760
Web address (URL)https://www.elgaronline.com/edcollchap/book/9781803928760/book-part-9781803928760-17.xml
https://www.elgaronline.com/edcollbook/book/9781803928760/9781803928760.xml
File
License
All rights reserved
File Access Level
Controlled
Output statusPublished
Publication dates
Online01 Dec 2023
Publication process dates
CompletedDec 2023
Deposited05 Feb 2024
Permalink -

https://repository.derby.ac.uk/item/q0363/vulnerability-theory-and-insolvency-law

Restricted files

File

  • 6
    total views
  • 2
    total downloads
  • 1
    views this month
  • 0
    downloads this month

Export as

Related outputs

Resisting Legal Convergence
Gant, J. 2024. Resisting Legal Convergence. in: Ghio, E. and Perlingeiro, R. (ed.) Are Legal Systems Converging or Diverging? Lessons from Contemporary Crises New York Springer. pp. 45-60
Pre Packs, Employees and the Spirit of EU Law
Gant, J. Pre Packs, Employees and the Spirit of EU Law. INSOL Europe.
Corporate Recovery in an Integrated Europe
Lynch Fannon, I., Gant, J. and Finnerty, A. 2022. Corporate Recovery in an Integrated Europe. Cheltenham and Camberley Edward Elgar Publishing.
Floating Charges and Moral Hazard: Searching for Fairness for Involuntary and Vulnerable Stakeholders
Gant, J. 2022. Floating Charges and Moral Hazard: Searching for Fairness for Involuntary and Vulnerable Stakeholders. in: Hardman, J and MacPherson, A. (ed.) Floating Charges in Scotland: New Perspectives and Current Issues Edinburgh Edinburgh University Press. pp. 228 - 270
Optimising fairness in insolvency and restructuring: A spotlight on vulnerable stakeholders
Gant, J. 2022. Optimising fairness in insolvency and restructuring: A spotlight on vulnerable stakeholders. International Insolvency Review. 31 (1), pp. 1-5. https://doi.org/10.1002/iir.1448
Harmonising Insolvency Law in the EU: New Thoughts on Old Ideas in the Wake of the COVID-19 Pandemic
Gant, J., Ghio, E., Vaccari, E., Ehmke, D., Langkjaer, L. and Boon, G.J. 2021. Harmonising Insolvency Law in the EU: New Thoughts on Old Ideas in the Wake of the COVID-19 Pandemic. International Insolvency Review . 30 (3), pp. 427-459. https://doi.org/10.1002/iir.1432
Employees as stakeholders in restructuring and insolvency: acquired rights and business transfers
Gant, J. 2021. Employees as stakeholders in restructuring and insolvency: acquired rights and business transfers. in: Gant, J. and Omar, P. (ed.) Research Handbook on Corporate Restructuring United Kingdom Edward Elgar Publishing. pp. 166-184
The Role of Social Policy in Corporate Rescue and Restructuring: a Messy Business
Gant, J. 2021. The Role of Social Policy in Corporate Rescue and Restructuring: a Messy Business. in: Gant, J. and Omar, P. (ed.) Research Handbook on Corporate Restructuring United Kingdom Edward Elgar Publishing. pp. 476-499
Book Review: COVID-19: Exploring the new normal in insolvency by Dr Sameer Sharma and Dr Neeti Shikha (eds)
Gant, J. 2021. Book Review: COVID-19: Exploring the new normal in insolvency by Dr Sameer Sharma and Dr Neeti Shikha (eds). International Insolvency Review. 30 (3), p. 478. https://doi.org/10.1002/iir.1437
The EU Preventive Restructuring Framework: in Extra Time?
Gant, J., Omar, P, Langkjaer, L., Ghio, E., Vaccari, E., Boon, G-J. and Ehmke, D. 2021. The EU Preventive Restructuring Framework: in Extra Time? Fizetésképtelenségi Jog (Insolvency Law, a Hungarian journal). 2-3, pp. 1-11.
Britain and Brexit: A Forecast of the Future of Employment Protection during Corporate Insolvency
Gant, J. 2020. Britain and Brexit: A Forecast of the Future of Employment Protection during Corporate Insolvency. International Insolvency Review. 29 (1), pp. 61-85. https://doi.org/10.1002/iir.1371
Guest Editorial: The Rise of Early Career Insolvency Law Academics and Researchers
Gant, J., Boon, G-J. and Vaccari, E. 2020. Guest Editorial: The Rise of Early Career Insolvency Law Academics and Researchers. International Insolvency Review. 29 (1), pp. 1-5. https://doi.org/10.1002/iir.1363
JCOERE Report 1: Report 1: Identifying substantive rules in preventive restructuring frameworks including the Preventive Restructuring Directive which may be incompatible with judicial cooperation obligations
Gant, J., Lynch Fannon, I. and JCOERE Consortium 2020. JCOERE Report 1: Report 1: Identifying substantive rules in preventive restructuring frameworks including the Preventive Restructuring Directive which may be incompatible with judicial cooperation obligations. European Commission.
The Limits and Logic of the EU Harmonisation Process in the Wake of the Covid-19 Pandemic
Gant, J., Ghio, E., Boon, G-J., Vaccari, E., Ehmke, D. and Langkjaer, L. 2020. The Limits and Logic of the EU Harmonisation Process in the Wake of the Covid-19 Pandemic. Eurofenix. 80, pp. 22-23.
Special Report: Judicial Co-Operation in the European Union: Insolvency and Rescue
Gant, J. and Lynch Fannon, I. 2020. Special Report: Judicial Co-Operation in the European Union: Insolvency and Rescue. Sweet and Maxwell.
JCOERE’s Perspective on European Integration and the Scope of Mutual Trust and Cooperation between Courts: Testing Fairness
Gant, J. and Lynch Fannon, I. 2020. JCOERE’s Perspective on European Integration and the Scope of Mutual Trust and Cooperation between Courts: Testing Fairness. British Association of Comparative Law.
JCOERE – Judicial Cooperation in the European Union: Insolvency and Rescue
Gant, J. and Lynch Fannon, I. 2020. JCOERE – Judicial Cooperation in the European Union: Insolvency and Rescue. INSOL Europe Academic Forum Annual Conference, Copenhagen, Denmark, 25-26 September 2019. INSOL Europe.
JCOERE Judicial Co-operation Supporting Economic Recovery in Europe: Report 2
Gant, J., Lynch Fannon, I and The JCOERE Consortium 2020. JCOERE Judicial Co-operation Supporting Economic Recovery in Europe: Report 2. University College Cork, Ireland European Commission.
Judicial Cooperation in Economic Recovery (JCOERE)
Gant, J. and Lynch Fannon, I. 2019. Judicial Cooperation in Economic Recovery (JCOERE). Eurofenix. 78 (Winter), pp. 28-29.
10 Years of YANIL: Restructuring across Europe and the EU Directive on Restructuring and Insolvency
Gant, J., Boon, G-J., Langkjaer, L., Ehmke, D. and Ghio, E. 2019. 10 Years of YANIL: Restructuring across Europe and the EU Directive on Restructuring and Insolvency. Eurofenix. 76 (Summer), pp. 34-35.
Moral Hazar, Path Dependency, and Failing Franchisors: Mitigating Franchisee Risk through Participation
Gant, J. and Buchan, J. 2019. Moral Hazar, Path Dependency, and Failing Franchisors: Mitigating Franchisee Risk through Participation. Federal Law Review. 47 (2), pp. 261-294. https://doi.org/10.1177/0067205X19831841
Restructuring Europe – The EU Preventive Restructuring Framework: a hole in one?
Gant, J., Ehmke, D., Ghio, E., Langkjaer, L. and Boon, G-J. 2019. Restructuring Europe – The EU Preventive Restructuring Framework: a hole in one? International Insolvency Review. 28 (2), pp. 184-209. https://doi.org/10.1002/iir.1344