What Liquidation Does for Secured Creditors, and What it Does for You
University College London (UCL) - Faculty of Laws; World Bank Global Initiative on insolvency and Creditor/Debtor Regimes; 3-4 South Square Chambers
Modern Law Review, Vol. 71, Issue 5, pp. 699-733, September 2008
This article analyses the liquidation process, challenging the much repeated proposition that secured claimants stand outside liquidation. It is argued that this proposition (i) is a product of a misunderstanding of the dual duality in the nature of liquidation proceedings, in that, in principle, they serve both public and private functions, and they further the interests of both secured and unsecured creditors; (ii) overlooks how secured creditors benefit from liquidation, and also how unsecured creditors have a real interest in the proper administration of their debtor's encumbered assets; (iii) mistakes the secured creditor's choice in usually being able to gain immunity from the liquidation process, for a compulsion to stand exiled from this process; (iv) is incorrect as a matter of history and practice; and (v) is rendered unsustainable by the statutory text. It concludes that secured creditors have never stood outside liquidation, that liquidation is an important tool for the protection of their interests, and that it is right to require floating charge holders to pay their fair share of liquidation expenses.
Number of Pages in PDF File: 35Accepted Paper Series
Date posted: August 22, 2008
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