What is an insolvency proceeding? <i>Gategroup</i> lands in a gated community
Bibliographic record
Abstract
Abstract Many English (and other) restructuring lawyers consider that the scheme of arrangement cannot properly be characterized as an insolvency proceeding for the purposes of certain international instruments for (amongst other things) the allocation of jurisdiction and/or the recognition of proceedings, judgments, and/or orders. This article shows that this view is mistaken. The article examines insolvency as a scalar attribute and a vague concept. It draws out the implications of treating insolvency law functionally as that part of law which responds to the circumstances peculiar to a debtor's insolvency. It considers the nature of insolvency, “pre‐insolvency”, “preventive'”, restructuring, liquidation, and “pre‐pack” proceedings. It shows that proceedings operating under insolvency law in relation to insolvent debtors often operate in identical or materially similar ways in relation to solvent debtors. This is as true of winding‐up, administration, and company voluntary arrangement proceedings under English law as of the scheme of arrangement. This has important implications for the characterization of a proceeding as an insolvency proceeding for relevant purposes. The article outlines the development of the concordat in several civil law jurisdictions, starting with its roots in Justinian's Digest. It traces the development of the composition in England, starting with its status as a voluntary process incapable of binding dissentients, taking in the “protections” granted by the Privy Council and the “bills of conformity” issued by the Court of Chancery, and then considering statutory compositions. It shows how the statutory composition travelled from natural person insolvency law to corporate insolvency law. The artic draws on this analysis and the official reports on key European instruments allocating international jurisdiction in insolvency and “civil and commercial” matters to characterise the scheme of arrangement. The article also assesses the most detailed critique yet of the gategroup judgment of the High Court of England and Wales, which characterized the restructuring plan proceeding as an insolvency proceeding for certain jurisdictional purposes. The critique of this judgment usefully exposes to the sunlight of public scrutiny — at length and independently of the exigencies of any particular litigation — the types of arguments which have been used to resist the conclusion that the scheme is (quite plainly) a judicial composition which constitutes an insolvency proceeding for relevant purposes when deployed in relation to insolvent companies. The article shows that these arguments are unpersuasive.
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How this classification was reachedexpand
Full frame machine prediction
Teacher imitationNot calibrated prevalence, not ground truth. Human validation pending. The Gemma side is a direct model label for every work in the frame, read from the title-only record. The Codex side is a classifier learned from the 10,348 direct Codex labels and calibrated to design-weighted sample rates; fields without enough sample support carry no Codex call. Candidate is the union of the two sides; consensus is their intersection. These outputs are machine_predicted_unvalidated and are not human labels.
Distilled classifier scores by category (both heads)
| Category | Codex | Gemma |
|---|---|---|
| Metaresearch | 0.001 | 0.004 |
| Meta-epidemiology (narrow) | 0.000 | 0.000 |
| Meta-epidemiology (broad) | 0.000 | 0.000 |
| Bibliometrics | 0.001 | 0.001 |
| Science and technology studies | 0.007 | 0.006 |
| Scholarly communication | 0.008 | 0.003 |
| Open science | 0.001 | 0.003 |
| Research integrity | 0.002 | 0.002 |
| Insufficient payload (model declined to judge) | 0.019 | 0.001 |
Machine scores (provisional)
The two teacher heads of the student model, read on this work. A score orders the frame for review; it never asserts a category, and the validation status ships verbatim with every row.
Baseline scores from an immature model (maturity gate not passed, 7 training rounds). Scores rank; they never assert a category.
score_only:v0-immature-baseline · verbatim from the scoring run: score_only means the number may rank works, and no category label ships from itClassification
machine, unvalidatedMachine predicted; a candidate call from one source (direct Gemma or distilled Codex), not a consensus.
How this classification was reached, model by model and score by score, is at the end of the page under "How this classification was reached".