Promoting Fairness in English Insolvency Valuation Cases

This is the second part of a comprehensive study on fair measurement of value in English insolvency law. The author has already demonstrated in a previous paper the importance of posing and responding to questions about fairness in the insolvency process. That paper developed a specific framework to measure whether assets and businesses are fairly valued in insolvency and bankruptcy cases. The proposed communitarian, fairness-oriented framework is based on a modified version of Rawls, Finch and Radin’s concepts of fairness. It evidenced that when assessed against fairness, none of the valuation techniques currently available to the courts are without limitations. Building on the findings of this previous work, this paper investigates whether English case law: (i) achieves a fair valuation of the debtor’s assets and business; and (ii) protects interested parties (mainly creditors and shareholders) who have realistic prospects of receiving a distribution- against unfair harm.