David Bourget (Western Ontario)
David Chalmers (ANU, NYU)
Rafael De Clercq
Jack Alan Reynolds
Learn more about PhilPapers
The bankruptcy courts are currently split on the appropriate choice of law rule, some contend that they must apply the forum state's choice of law rule while others contend that they are free to create a federal choice of law rule. This Article contends that the forum state's choice of law rule is inapplicable in the bankruptcy context when interpretation and application of the Bankruptcy Code requires reference to state law. In these instances,bankruptcy courts should be free to develop a federal choice of law rule that promotes the federal policies underlying the Bankruptcy Code. This approach will result in the Bankruptcy Code being interpreted by reference to state laws that are consistent with and promote the Code's underlying policies. Importantly, such an approach requires courts to ensure that the parties' rights and obligations are not unnecessarily altered by the bankruptcy process. Likewise, it avoids the situation where a state's public policy dictates which state law should be used to interpret and apply federal law. Under this paradigm, courts would choose the state law that aids a debtor's fresh start upon emergence from bankruptcy, promotes the ratable distribution of available assets among the creditors, and, perhaps most importantly, ensures that the rights of the parties are not unnecessarily undermined by the happenstance of bankruptcy.
|Keywords||No keywords specified (fix it)|
No categories specified
(categorize this paper)
Setup an account with your affiliations in order to access resources via your University's proxy server
Configure custom proxy (use this if your affiliation does not provide a proxy)
|Through your library||
References found in this work BETA
No references found.
Citations of this work BETA
No citations found.
Similar books and articles
Meir Tamari (1990). Ethical Issues in Bankruptcy: A Jewish Perspective. [REVIEW] Journal of Business Ethics 9 (10):785 - 789.
J. Alcalde, M. C. Marco-Gil & J. A. Silva, The Minimal Overlap Rule: Restrictions on Mergers for Creditors' Consensus.
Geoffrey Tweedale & Richard Warren (2004). Chapter 11 and Asbestos: Encouraging Private Enterprise or Conspiring to Avoid Liability? Journal of Business Ethics 55 (1):31 - 42.
Tweedale Geoffrey & Warren Richard (2004). Chapter 11 and Asbestos: Encouraging Private Enterprise or Conspiring to Avoid Liability? [REVIEW] Journal of Business Ethics 55 (1):31-42.
Kenneth Decourcy Ferguson, Discourse and Discharge: Linguistic Analysis and Abuse of the 'Exemption by Declaration' Process in Bankruptcy.
Brad Johnson, B. R. Baliga & John D. Blair (1986). Chapter 11: Strategic Advantage and Social Anathema? [REVIEW] Journal of Business Ethics 5 (1):51 - 61.
Added to index2009-01-28
Total downloads3 ( #267,324 of 1,096,179 )
Recent downloads (6 months)0
How can I increase my downloads?