The impact of the European insolvency regulation on lenders, lending decisions, the structuring of transactions and enforcement of security
This Thesis seeks to shed light on the issue of how far secured creditor rights are protected in EU cross-border insolvencies by focusing on the perspective and position of English lenders. The main thread throughout is the legal concerns faced by lenders when lending to a company incorporated in England and Wales which operates across the European Union and has assets and creditors spread across various Member States. The initial stages of the structuring of a cross-border security arrangement in terms of the enforceability of the lending transaction and underlying security interest under the ordinary civil/commercial law outside of bankruptcy are considered. The potential contractual and proprietary issues faced by lenders are discussed through the lens of English domestic law which for the present purposes includes EU law such as the Brussels I and Rome I Regulations. After ascertaining how lenders can ensure their lending transactions and underlying security interests are valid and enforceable prebankruptcy, the thesis explores the position of lenders in the face of insolvency proceedings and the issue of 'insolvency effects'. The thesis then goes on to analyze the impact of the EC Regulation on insolvency proceedings (the EIR) having regard to jurisdiction, recognition, applicable law and provisions which create exceptions to the application of the lex concursus and have particular impact on the enforcement of lenders' rights in the event of default and formal insolvency.
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