Choice of law in cross-border insolvencies: matters of substance and procedure

Article


Mason, Rosalind. 2001. "Choice of law in cross-border insolvencies: matters of substance and procedure." Insolvency Law Journal. 9 (2), pp. 69-87.
Article Title

Choice of law in cross-border insolvencies: matters of substance and procedure

ERA Journal ID37153
Article CategoryArticle
Authors
AuthorMason, Rosalind
Journal TitleInsolvency Law Journal
Journal Citation9 (2), pp. 69-87
Number of Pages20
Year2001
Place of PublicationSydney, Australia
ISSN1039-3293
Web Address (URL)http://legalonline.thomson.com.au/subscribed/static-fs/journals/INSOLVLJ/LAWREP-009-INSOLVL-JL-0069.pdf?sessionId=1b81f1f70ade6d0437ff6df2cca3bec9
Abstract

In a recent cross-border personal injuries case, the High Court, when choosing the relevant law to apply, departed from its previous distinction between laws of procedure and of substance based on remedies and rights. Instead it held that procedure refers to 'rules which are directed to governing or regulating the mode or conduct of court proceedings'. All other provisions or rules are to be classified as substantive. As such, this opens up the possibility of non-forum laws being chosen to apply to issues that may once have been considered procedural. This article explores the potential impact that this new distinction may have on cross-border insolvency practice in the international context.

Keywordsbankruptcy; state law; workers compensation; conflict of laws
ANZSRC Field of Research 2020480103. Corporations and associations law
480504. Legal institutions (incl. courts and justice systems)
480410. Legal theory, jurisprudence and legal interpretation
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Byline AffiliationsSchool of Law
Institution of OriginUniversity of Southern Queensland
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