The Ammanati Affair: Seven Centuries Old, and not Feeling the Age

The enactments of the UNCITRAL Model Law on Cross-Border Insolvency (“UNCITRAL Model Law”) and the European Regulations on insolvency proceedings have promoted an incremental approach towards substantive harmonization. This strategy has not remained unquestioned. One of the major criticisms is that such a course of action overlooks the nature of the issues currently raised in multi-national and cross-disciplinary bankruptcy procedures. This article focuses on the Anglo-American bankruptcy tradition. It adopts a doctrinal methodology to question the conclusion that “collectivity” is and should be a procedural, objective and secondary notion in light of two case studies. It suggests that in the context of cross-border, cross-disciplinary cases, equitable concepts could be employed to introduce a more nuanced understanding of the notion of “collectivity.” This should facilitate the recognition of foreign bankruptcy proceedings alongside with their inclusiveness, finality and certainty. This article acknowledges that some of the discussed issues can be ascribed to the lack of mandatory guidance on group bankruptcies. This aspect has not been ignored. Recently, the EU Regulation 2015/848 on Insolvency Proceedings (“EU Recast Regulation”) has included a section on the treatment of group bankruptcies, albeit the implementation of its provisions is voluntary. A comprehensive recitation of the current debate, the existing challenges, and the solutions proposed and implemented to date are beyond the limits of this article. A cursory analysis of them would not do the issues justice, hence it is omitted from this text.