Harmonisation of European Insolvency Law and the Need to Tackle Two Common Problems: Common Pool & Anticommons

18 Pages Posted: 27 Oct 2011 Last revised: 8 Nov 2011

See all articles by Roelf Jakob de Weijs

Roelf Jakob de Weijs

University of Amsterdam - Centre for the Study of European Contract Law (CSECL)

Date Written: October 19, 2011

Abstract

Insolvency Law has finally become a field of law for which harmonisation at a European level is considered both important and feasible. In deciding upon the content of such harmonized rules, there will need to be a common understanding about the goals of insolvency law and therefore a European debate on bankruptcy theory. Bankruptcy theory, and most notably the influential Creditors’ Bargain Theory, has long viewed insolvency law as a set of rules for overcoming common pool problems. Bankruptcy theory thus far has almost completely overlooked anticommons problems. Anticommons present themselves in a situation in which there are several owners or entitled parties, and each of the parties has it within its power to block the use by others. Should anticommons behaviour in insolvency procedures go unchecked, creditors as a whole will be harmed. Insolvency is a collective process and this process may not be sabotaged by a single party. Four typical insolvency issues, each identified by Insol Europe as a candidate for harmonisation at a European level, are discussed, analysing them in terms of common pool problems and anticommons: preferences, reorganisation/composition plans, claim validation and insolvency of a group of companies.

Keywords: European insolvency law, european property law, european contract law, anticommons, creditor's bargain theory, bankruptcy theory

JEL Classification: K11

Suggested Citation

de Weijs, Roelf Jakob, Harmonisation of European Insolvency Law and the Need to Tackle Two Common Problems: Common Pool & Anticommons (October 19, 2011). Amsterdam Law School Research Paper No. 2011-44; Centre for the Study of European Contract Law Working Paper Series No. 2011-16. Available at SSRN: https://ssrn.com/abstract=1950100

Roelf Jakob De Weijs (Contact Author)

University of Amsterdam - Centre for the Study of European Contract Law (CSECL) ( email )

P.O. Box 1030
Amsterdam, 1000 BA
Netherlands

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