Rethinking cross-border insolvency and rescue law theory: towards a better understanding of European harmonisation
University College Cork
This thesis argues for the need to rethink cross-border insolvency and rescue law theory, in light of current European Union (EU) regulatory developments in this policy area. It disputes the theoretical and normative value of the traditional framework in which cross-border insolvency and rescue law is construed especially in the current Eurosceptical political context. This thesis contends that cross-border insolvency and rescue law theory should no longer be centred around the outdated and sterile theoretical debate on universalism and territorialism. Rather, it suggests that the recent EU regulatory developments have produced a new framework in which cross-border insolvency and rescue law should be construed. This new paradigm-shifting framework revisits the concept of legal harmonisation in the context of the EU objective of integrating the European Single Market. This thesis introduces a new understanding of “harmonisation” and presents the regulatory methods and instruments it encompasses. The research uses the specific field of cross-border insolvency and rescue law as a case study to gather empirical findings, which provide insight into the regulatory objectives and approaches used by the EU when building the Single Market. Following the findings of the case study, the thesis develops a new theory which helps to understand and assess EU initiatives in the policy area of business failure, but which can also be used as a model in other policy areas. This thesis ultimately argues in favour of an abandonment of the strict understanding of harmonisation, as synonymous with uniformity. Instead, the new theory assigns a new, pragmatic and flexible meaning and scope to the concept of legal “harmonisation”, which is understood as encompassing diverse regulatory methods, such as convergence, reflexive harmonisation and approximation, which all contribute to the achievement of the economic and political goals of the EU.
Insolvency , Restructuring , EU Law , Harmonisation , Legal theory , Law
Ghio, E. 2018. Rethinking cross-border insolvency and rescue law theory: towards a better understanding of European harmonisation. PhD Thesis, University College Cork.