A common law comparison: an analysis of corporate insolvency practitioners' roles and regulation

This submission explores and compares common law countries based on English law. It undertakes an analysis with respect to the roles and regulation of corporate insolvency practitioners in common law countries with English law traditions in order to establish common experiences and key challenges facing corporate insolvency practitioners. The focus of the comparison is upon the United Kingdom, Australia, New Zealand and India with detailed discussion and comparison of corporate insolvency regulation within those nations, and some further consideration of South Africa, the United States of America and Canada. Commonalities and distinctions are drawn and an analysis establishes common themes and concerns in the practice and supervision of corporate insolvency practitioners across these common law jurisdictions. It is determined that England and Wales, Australia, New Zealand and India share a number of common concerns with respect to the regulation of corporate insolvency practitioners, namely: how to achieve ‘good regulation’ and how to achieve balance in the regulation of corporate insolvency practitioners’ qualification and licencing requirements, remuneration, and professional and ethical standards. Notwithstanding that each country has divergent approaches to regulating these issues, these are common problems which each must manage in the interests of facilitating an effective insolvency regime, and trust and confidence in that regime. Consideration is given to the different regulatory approaches taken in the relevant nations, and to various international benchmarks, including benchmarks and guidance from the International Association of Insolvency Regulators, the International Monetary Fund, the World Bank, the European Bank for Reconstruction and Development and the United Nations Commission on International Trade Law. Consideration is given to the different recommendations made, and to the different regulatory endeavours, to manage the challenges of corporate insolvency practice. A discussion is undertaken with respect to ‘good regulation’, ‘balance’ and the requisite standards of regulation for corporate insolvency practitioners. Each of the nations discussed recognise that there is a fundamental need for competent, ethical and accountable insolvency practitioners who hold the confidence of insolvency stakeholders. However, there is limited literature which considers regulatory theory in the context of corporate insolvency practitioners, or which considers what amounts to ‘good regulation’ of corporate insolvency practitioners, or which considers the impact of regulatory models and approaches upon the practice of corporate insolvency. This research seeks to contribute to this gap in literature in order to inform regulatory approaches. In doing so it proffers insights into the possible improvement of corporate insolvency practitioner regulation.

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