Report from the 2013 Academic Forum

06/03/13

This year's ILA Academic Forum took place in the historic surroundings of Trinity Hall College in Cambridge and was a resounding success. Record numbers attended comprising academics (about half of the total), barristers, solicitors, overseas academics and members of the judiciary. The day achieved its aim of generating a melting pot of people and ideas from all areas of the restructuring and insolvency legal profession and was chaired by Sarah Worthington Downing Professor of the Laws of England, University of Cambridge who kept us all in order with rigorous discipline and glamour.

The first session was on the EC Insolvency Regulation, where a panel of distinguished academics from four Member States debated the case for the recently proposed reforms.  Dr Kristin van Zwieten John Collier Fellow in Law, University of Cambridge as chair was joined by Wolf-Georg Ringe Professor of International Commercial Law, Copenhagen Business School, Francisco Garcimartin Professor of Private International Law, Linklaters SLP and Professor Irene Lynch Fannon Head, College of Business and Law, University College Cork. The session highlighted both a common approach among Member States on most of the issues under reform, as well a few stark differences - notably on the subject of whether English schemes of arrangement should be included in Annex A and the extent to which schemes may be recognised in other Member States going forward if the UK does not list them. Prof Irene Lynch Fannon also commented on the difficulties of applying CoMI to individuals, particularly in the context of bankruptcy tourism.

Next Dr Sandra Frisby Associate Professor and Reader in Company and Commercial Law, University of Nottingham gave a characteristically dazzling session on her current research on creditor profiles in UK CVLs and insolvencies.  As HMRC appears to be the single biggest creditor, should we be looking at the taxpayers' case for reform?  The answer will have to wait for the project to mature.

Natalie Mrockova, the winner of the first ever ILA Academic Forum Competition, and D.Phil student at Oxford University, presented a paper on her doctorate project: "Designing insolvency laws for transition economies: the case of China".  Despite being a topic outside most peoples' every day job, she captivated the room with her witty explanation of the system in China and gave food for thought as to how the system in China (or lack of use of it) is going to impact our world as we become ever more entwined economically with economies in the far east.

A particular highlight of the day was the session delivered jointly by Prof. Jay Westbrook Chair of Business Law, University of Texas School of Law and Jennifer Marshall, Partner at Allen & Overy entitled "Divided by a Common Law: the divergence between the US and UK approach to anti-deprivation and claw-back".  After highlighting the opposite outcomes in our two highest courts on the same facts and issues, Jay and Jennifer offered a call to arms following the Rubin decision: functioning international insolvencies require recognition of judgments - an issue all too important to ignore.

Dr Jo Braithwaite Lecturer in International Commercial Finance Law, Department of Law, London School of Economics and Political Science provided us with a lively overview of her recent work on OTC Derivatives: the Courts and Regulatory Reform giving us welcome clarity on a subject which is renowned for its obscurity.

For the final session of the day, 4 heavyweights debated which is the most influential Supreme Court (or House of Lords) decision in restructuring and insolvency in the last decade. Prof. Sir Roy Goode QC Emeritus Professor of Law, University of Oxford, and Founder of the Centre for Commercial Law Studies, Queen Mary, University of London argued the case for Belmont, Gabriel Moss QC of South Square for the Kaupthing Cherry v Boultbee decision, David Chivers QC, Erskine Chambers for Spectrum, and Prof Dan Prentice Erskine Chambers, and Emeritus Allen & Overy Professor of Company Law, University of Oxford for the recent Rubin decision.  The result was a highly entertaining display of wit and knowledge - a real joy to behold. The winner was Spectrum David Chivers QC, who managed to outgun the academics with some (creative and well illustrated!) empirical arguments and a lot of charm.

The event was very well supported by both the academic and practitioner communities confirming that the partnership between the two is going from strength to strength. Given the demands placed upon both limbs of the profession by the current unprecedented rate of development of law in restructuring and insolvency, there can only be a benefit from collaboration. We therefore look forward eagerly to the ILA Academic Forum 2014.

Photographs from the Forum can be seen here.