What's Past Is Prologue: The European Movement Toward Harmonized Pre-Insolvency Business Restructurings Contrasted with The American Preference for Going-Concern Asset Sales

This article contains a snapshot of the negotiations by the European Council and the European Parliament with the European Commission on the scope and text of a final Directive, a description of recent "business rescue" legislation enacted in Europe during 2017, and a summary of the Instrument recently published by the European Law Institute entitled "Rescue of Business in Insolvency Law."
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This article contains a snapshot of the negotiations by the European Council and the European Parliament with the European Commission on the scope and text of a final Directive, a description of recent "business rescue" legislation enacted in Europe during 2017, and a summary of the Instrument recently published by the European Law Institute entitled "Rescue of Business in Insolvency Law."

Professor Harry Rajak is an Emeritus Professor of Law at the University of Sussex, England, and is an elected member of the International Insolvency Institute. Professor Rajak may be contacted at h.h.rajak@sussex.ac.uk.

Patrick E. Mears, a member of the Board of Editors of Pratt’s Journal of Bankruptcy Law, is an Adjunct Professor of Law at the University of Mannheim in Germany and is currently living in Heidelberg, Germany. Mr. Mears is an elected member of the International Insolvency Institute, the American College of Bankruptcy, and the American Law Institute. Mr. P. Mears may be contacted at patrick_mears@t-online.de.

Edward O. Mears is an associate at an international law firm in Tokyo, Japan and is a graduate of the University of Michigan Law School, where he was a contributing editor to The Michigan Journal of International Law and spent a semester studying European Union Law at KU Leuven in Leuven, Belgium. Mr. E. Mears may be contacted at emears@umich.edu.

The authors would like to thank Dr. Andreas Remmert, a Justice of the Bundesgerichtshof in Karlsruhe, Germany, for reviewing this article and would also like to thank Messrs. John J. Jerome, Herbert P. Minkel, both of New York City and Members of the National Bankruptcy Conference, along with Emeritus Professor Bob Wessels of Leiden University and Professor Dr. Stephan Madaus of Martin-Luther- Universitat, Halle-Wittenberg, Germany, for their valuable and incisive comments on the final draft of this article.

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