Emory Bankruptcy Developments Journal

Volume 36Issue 1
A Tribute to James H.M. Sprayregen
Articles

Tuition as a Fraudulent Transfer

David Gray Carlson | 36 Emory Bankr. Dev. J. 15 (2020)

This intriguing Article by David Gray Carlson addresses the trend of bankruptcy trustees suing universities for tuition checks provided by the insolvent parents of adult students under a theory that the university is a recipient of a fraudulent transfer. The author argues that this strategy is misguided, as the university is not the recipient of a fraudulent transfer, but rather, the student is the recipient. This leads the author to conclude that the university was involved in a good faith transfer for value, and thus it should be immune from liability to the bankruptcy trustee or the estate. Of course, this would mean that the student was the recipient of a fraudulent transfer, and thus liable to the trustee for this nondischargeable debt.

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Implementing Strategies for the Model Law on Cross-Border Insolvency: The Divergence in Asia-Pacific and Lessons for UNCITRAL

Wai Yee Wan & Gerard McCormack | 36 Emory Bankr. Dev. J. 59 (2020)

The UNCITRAL Model Law on Cross-border Insolvency was conceived in 1997 with the objective of facilitating the optimal management of cross-border insolvency. Its aim was to do so by providing an adoptable, consistent framework for countries to recognize foreign insolvency proceedings. While the Model Law has achieved some success in promoting cooperation among the different Asian-Pacific states in cross-border insolvency proceedings, the goals of the model law have still yet to be realized to their fullest extent. This is likely the result of states neglecting to fully implement the model law into their respective domestic laws and state judiciaries inconsistently interpreting what legislation they have implemented to enact the model law. This informative Article by Wai Yee Wan and Gerard McCormack examines the different strategies Asia-Pacific states have taken to implement the model law and assesses the reasons for the divergence among the different states. This Article illustrates the complexities and limitations of achieving the objectives of a model law when the path dependency matters and sets each state on a unique course.

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Corporate Governance, Bankruptcy Waivers, and Consolidation in Bankruptcy

Daniel J. Bussel | 36 Emory Bankr. Dev. J. 99 (2020)

This outstanding Article by Daniel J. Bussel examines bankruptcy’s ability to override corporate law formalities and provide effective relief consistent with the underlying policies of the Bankruptcy Code. Recent scholarship and case law tend to support the legitimacy of entity partitions and contractual barriers to voluntary bankruptcy relief found in corporate charters. The author persuasively contends that bankruptcy law should return to the basics by refocusing on substance over form in order for corporate formalities to again yield to substantive bankruptcy policy.

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