Abstract

http://ssrn.com/abstract=1444531
 
 

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The Role of History and Culture in Developing Bankruptcy and Insolvency Systems: The Perils of Legal Transplantation


Nathalie Martin


University of New Mexico - School of Law

2005

Boston College International and Comparative Law Review, Vol. 28, No. 2, 2005

Abstract:     
In this Article, Professor Nathalie Martin examines societal attitudes toward debt and financial failure in the context of two global trends, the liberalization of bankruptcy and insolvency laws, and the increased availability of consumer credit around the world. The Article begins, with a description of the history of the U.S. economy, its risk-oriented capitalist ethos, its consumer culture, and its resulting consumer and business bankruptcy laws. The Article next briefly addresses the personal bankruptcy systems of Continental Europe, noting that in some places, U.S.-style bankruptcy systems have been enacted but not necessarily accepted. Professor Martin then discusses new laws being proposed or passed in Japan, Hong Kong, and mainland China, some of which are based in part upon U.S. laws. Based on this and other examples, she concludes that cultural attitudes play a tremendous role in the efficacy of bankruptcy and insolvency systems. She further concludes that, as more and more consumer and business credit becomes available around the world, the countries affected will need to enact effective and accepted discharge and fresh start principles, but that these systems cannot simply be transplanted from the United States. Such transplantation is likely to be ineffective and thus gradual education and changes in laws and credit availability will be needed in order to avoid the extensive social costs that could result from too much credit in systems that do not accept financial failure.

Number of Pages in PDF File: 77

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Date posted: August 6, 2009  

Suggested Citation

Martin, Nathalie, The Role of History and Culture in Developing Bankruptcy and Insolvency Systems: The Perils of Legal Transplantation (2005). Boston College International and Comparative Law Review, Vol. 28, No. 2, 2005. Available at SSRN: http://ssrn.com/abstract=1444531

Contact Information

Nathalie Martin (Contact Author)
University of New Mexico - School of Law ( email )
1117 Stanford, N.E.
Albuquerque, NM 87131
United States

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