Executory contracts in insolvency law: A global guide (2nd edition). By JasonChuah, EugenioVaccari, Cheltenham: Edward Elgar. 2023. pp. 672. £220. ISBN: 978‐1‐80392‐341‐3

In June 2023, the United Nations published “5 things you need to know about the global economy in 2023”.1 It notes, as an opening line, that prospects for economic recovery remain dim. In the world of insolvency, evidence for this statement is seen daily. The world's economy is suffering due to inflation, rising interest rates, the continued economic fallout, and the effects of the Covid-19 Pandemic and the war in Ukraine.2 The increasing number of personal and corporate insolvencies globally, emphasizes the need for an effective and efficient insolvency framework that resolves insolvency. The resolution of insolvency includes dealing with conflicts between parties' attempts to enforce their contractual and other rights, and being subjected to the rules of insolvency law and practice. Guidance on how to best deal with scenarios where the debtor is party to an incomplete contract is therefore imperative. This book, currently in its second edition, looks at the treatment of these uncompleted or executory contracts in insolvency scenarios and provides a truly unique global guide to this topic. This second edition, indeed, goes beyond “a mere simple updating of the text”3 in that every chapter included endeavours to provide jurisdictional specific reflections on how the current global economic turmoil has affected commerce and the economy in this area of insolvency law. It boasts a previously excluded jurisdiction with the inclusion of South Korea in Chapter 26. The chapters on Germany (Chapter 18) and Singapore (Chapter 7) were also wholly rewritten for the second edition. The book presents its discussions in a logical and practical way by first providing an overarching thematic discussion of executory contracts and ipso facto clauses. Chapter 1 acts as a map to understand the approach taken by the contributors in evaluating the subject matter for their jurisdictions. However, it also provides some interesting points of comparison and deviation between the approaches taken by some jurisdictions in relation to uncompleted contracts in insolvency. This holistic approach serves to enlighten the reader of the bigger picture as well as the unique challenges that some jurisdictions face in relation to executory contracts when compared to others. These challenges range from how executory contracts are defined or not defined in different jurisdictions to the specificity employed by some jurisdictions as opposed to a complete lack of provision for the occurrence of uncompleted or executory contracts in others. Furthermore, Chapter 1 includes a discussion of the treatment of ipso facto or termination clauses. This, of course, is an indivisible part of the discussion relating to executory contracts and again provides an insightful view of how this area of the law has seen rapid change and development in many countries due to the pandemic. Part I of the book distinguishes the discussions contained therein as belonging to common law systems. Despite the contribution of various different authors there is a surprising continuity of expression here and throughout the book that speaks volumes to the quality of the work of the editors. Notable chapters in Part I are: Chapter 4 focusing on the English system and providing a thorough evaluation of the development of the law in the area, including the most recent reforms contained in the Corporate Insolvency and Governance Act of 2020 which introduced provisions pertaining to the suspension of termination clauses in section 233B of the Insolvency Act 1986; Chapter 6 covering New Zealand which highlights the general lack of provisions prohibiting ipso facto clauses; and Chapter 7 which addresses the Singaporean perspective and provides some very interesting insights into the major changes and reforms recently introduced by the jurisdiction to their insolvency regime, including the inclusion of section 440 of the new Insolvency, Restructuring and Dissolution Act 2018 which prohibits contract termination by reason only that the company is insolvent. Part II of the book then addresses the Nordic and Baltic systems and covers Denmark, Finland and Lithuania. These chapters provide evaluations of systems that are not often the focal point of comparative insolvency research. However, the content prove that it should be more readily regarded. By way of example, it can be noted that the Danish system, discussed in Chapter 9, reference the treatment of executory contracts in insolvency as early as 1872! It is particularly interesting to note the differences in approach in these jurisdictions which have all been influenced by the Directives of the European Parliament and Council. Several civil law systems are dealt with in Part III of the book. Notable here is the previously excluded jurisdiction of South Korea. In Chapter 26 an informative evaluation of the insolvency framework of South Korea is provided. Of particular interest here is the lack of a statutory definition for executory contracts. There is, however, case law regarding what does not constitute an executory contract based on the level of performance by the third party. This unique approach to the subject matter makes for fascinating reading. The book concludes in Part IV with chapters on hybrid or mixed systems of Law. Canada, South Africa and the United Arab Emirates are included in this discussion. Of interest to readers will be the way in which the split commercial insolvency system of Canada (Chapter 29) deals with executory contracts under the Companies' Creditors Arrangement Act and the Bankruptcy and Insolvency Act respectively. The marked difference in how the separate pieces of legislation developed to include the prohibition of ipso facto clauses based on insolvency is telling of how bifurcated systems can sometimes lead to disparities of treatment. This disparity can also be noted in a jurisdiction like South Africa (Chapter 30) where the discussion highlights the lack of reform to the insolvency framework with an Insolvency Act which was introduced in 1936 and a Business Rescue Regime in contrast thereto contained in the Companies Act of 2008.4 In conclusion, this Global Guide achieves exactly what it sets out to do. The book is edited to an exceptionally high standard and the chapters are well-written with a logical flow of discussion. This book is recommended for members of the profession, judiciary, and academia alike. It provides thoughtful analysis and interesting comparators.

Fetched live from OpenAlex and de-inverted. Abstracts are not stored in this database: the inverted indexes are 8.6 GB of the frame’s 9.3 GB of text, and the host has 13 GB free.