LLAW6286 Cross border corporate insolvency: issues and solutions

1.1 Course details

Course code: LLAW6286 / JDOC6286
Course name: Cross Border Corporate Insolvency: Issues and Solutions
Programme offered under: LLM Programme / JD Programme
Semester: First
Prerequisites / Co-requisites: ONE of the following categories:

  1. Company law by whatever name called including Business Associations
  2. Private International Law (Conflict of Laws) or courses rooted in conflict of laws such as Corporate Conflicts (taught by Dr Maisie Ooi)
  3. Insolvency law by whatever name called
  4. Cross Border Corporate Finance taught by Dr Maisie Ooi or equivalent corporate finance course
  5. Significant practical experience in insolvency or conflict of laws or cross border matters
Credit point value: 9 credits / 6 credits
Cap on student numbers: 30

1.2 Course description

A. Objectives of the course

The course seeks to provide you with the knowledge and skill necessary to deal with probably the most pressing problem that faces the world today, the collapse of enterprises across jurisdictional borders.  Covid-19 and unrest have resulted in unparalleled collapses in businesses across nations, and this is a long-term problem.

I tell students at the commencement of the course each year that this is an area of expertise that is recession-proof.  Whilst this is said in jest there is ample evidence of it.  It is the area of work that has flourished whilst many others have come to a stand-still with the economic fall-out from the pandemic and unrest.  Expertise in cross border corporate insolvency whilst critical in bad times is also necessary in good times as banks have rapidly come to realise the importance of structuring financing to buffer against possible insolvency of the borrower.

Traditionally (and largely still today) corporate insolvency is taught principally from the perspective of local laws.  Increasingly it is no longer sufficient to know the insolvency law of your home country.  With collapses that cross national borders there is a need to determine which country’s courts will have jurisdiction and which country’s insolvency law will be applied.  It is of course not possible to learn all the insolvency laws of every country, and you are not required to learn them whether for this course or in dealings with cross border corporate insolvency matters in your work.

The course seeks instead to provide you with an awareness and understanding of the issues that may arise so that you will be able to identify them, and deal with them sensibly and appropriately in practice. This knowledge and skill is widely appreciated in most sectors in which you may subsequently work and in most countries. It is required not just when the company has become insolvent but also when it is about to (as in restructuring or rescue work). It is also important that corporate and corporate finance lawyers and bankers be able to anticipate and provide for the insolvency of the borrower.

As the title suggests, this is a course about cross border issues in corporate insolvency and their resolution. It is NOT a course on the domestic insolvency law of any particular jurisdiction. Instead you will learn the general principles and policies of insolvency law and practice, and how they may differ from country to country. These are principles that you can usefully apply in most if not all countries. They will form the foundation of the core considerations of the course which are:

  • The issues that arise in cross border corporate collapses, with particular focus on issues of jurisdiction (which country’s court will decide), applicable law (which country’s laws will the court apply), recognition and enforcement (will the order be recognized and enforced in other countries); and
  • The various approaches that have been suggested or implemented for their resolution

The advantage of doing this course in these extraordinary times is that there is an abundance of real collapses to use as case studies.  Students have found this to be both exciting and very useful, with some reporting that they were engaged to deal with the very cases that we considered in the course.

The course should be useful to those who intend to have an international practice, whether in the corporate, insolvency or financial sectors, with a law firm, investment bank, accounting firm, in-house or with a regulator or international organisation.

B. Structure of the course

The course is structured in 2 parts:

Part I

A series of seminars to:

  • Provide an overview of the course and topics so that topics covered by the course may be seen as a whole
  • Introduce relevant laws, concepts and principles
  • Consider the issues that may arise, and the appropriate treatment of such issues

Part II

Students will be required to research into and think about the issues and their treatment in greater depth by way of a research paper which they will present and defend.  Students are allowed to work in teams on overlapping research areas and to present as a team.  There will be suggested research topics but students may also propose their own for consideration within the course parameters.

1.3 Course teachers

Name E-mail address Office Consultation
Course convenor Maisie Ooi maisieooi@hku.hk CCT 809 By Zoom or email

2.1 Course Learning Outcomes (CLOs) for this course

CLO 1 Demonstrate a good understanding of the differences in insolvency regimes and culture among jurisdictions and the problems that have arisen as a result thereof.

CLO 2 Ability to identify and critically analyse the conflicts issues arising in cross border corporate insolvency.

CLO 3 Ability to critically analyse and debate the various approaches on the treatment of these issues, and the arguments for and against each of them.

CLO 4 Ability to apply the skills and know-how acquired from the course and to propose solutions in real life situations.

2.2 LLM Programme Learning Outcomes (PLOs)

PLO A On successful completion of the curriculum, students should be able to demonstrate a solid understanding of the body of legal knowledge and the capacity to conduct research on, critically analyse and evaluate legal principles, at a level required to meet the standards and expectations of the legal profession and the community at large.

PLO B On successful completion of the curriculum, students should be able to apply their legal knowledge and research skills to practical situations or theoretical challenges, and utilise their comparative understanding of the law and its political, social and cultural contexts to provide original and creative insights to legal problems.

PLO C On successful completion of the curriculum, students should be able to apply the knowledge, lawyering skills and legal reasoning to real and novel situations in life, with a view to resolving issues, problems and disputes within the legal parameters.

PLO D On successful completion of the curriculum, students should be able to demonstrate the ability to present effectively legal arguments in the professional context, as well as conveying and explaining the law effectively to lay clients and members of the larger community.

PLO E On successful completion of the curriculum, students should be able to appreciate the underlying moral values of the law and ethics in the profession and the legal system in the broad social, economic, political and cultural contexts: justice, the Rule of Law, and protection of rights and liberties which form the fabrics of a civilised society, and the importance of upholding these values by the legal community.

PLO F On successful completion of the curriculum, students should be able to develop a strong awareness of social issues and conditions, and utilise analytical abilities and rhetorical advocacy to provide leadership for the betterment of the human community.

2.3 Programme Learning Outcomes to be achieved in this course

PLO A PLO B PLO C PLO D PLO E PLO F
CLO 1  ✓  ✓
CLO 2  ✓  ✓
CLO 3  ✓  ✓
CLO 4

3.1 Assessment Summary

Assessment task Due date Weighting Feedback method* Course learning outcomes
Team/self presentation TBC 20% 1, 5 1, 2, 3, 4
Research paper (individual) 10 Dec 2020 80% 1 1, 2, 3, 4
*Feedback method (to be determined by course teacher)
1 A general course report to be disseminated through Moodle
2 Individual feedback to be disseminated by email / through Moodle
3 Individual review meeting upon appointment
4 Group review meeting
5 In-class verbal feedback

3.2 Assessment Detail

The course will be assessed by research paper (70%) and the oral presentation of it (30%).  Topics will be suggested but students are free to select their own in consultation with the convener, Dr Maisie Ooi.  Students are allowed to work in teams on overlapping research areas and to present as a team.  The presentation will precede the submission of the research papers.  Whilst the presentation is assessed, its main purpose is to guide you towards finalizing and submitting a good strong paper.  Research papers are submitted on an individual basis.

3.3 Grading Criteria

Please refer to the following link: http://www.law.hku.hk/course/grading-criteria/

4.1 Learning Activity Plan

Seminar: 3 hours / week for 12 teaching weeks
Private study time: 9.5 hours / week for 12 teaching weeks

Remarks: the normative student study load per credit unit is 25 ± 5 hours (ie. 150 ± 30 hours for a 6-credit course), which includes all learning activities and experiences within and outside of classroom, and any assessment task and examinations and associated preparations.

4.2 Details of Learning Activities

  • Students will learn the course content through a series of seminars and suggested
    readings.
  • Students will be encouraged to actively debate issues and discuss case studies during the seminars, and to raise relevant issues of their own.
  • Students will identify particular areas for in-depth research. They may select from a list of research topics (which may be modified with the agreement of the convener) or propose their own for consideration of the convener.  They will be allowed to work on the research and present and defend their research in teams. They will submit individual research papers.

5.1 Resources

Reading materials: Reading materials are posted on Moodle
Core reading list: Will be posted on Moodle
Recommended reading list: Will be posted on Moodle

5.2 Links

Please refer to the following link: http://www.law.hku.hk/course/learning-resources/

By the publication of the course profile online, the Faculty deems the student as having been notified of the course requirements.