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Executory Contracts, Ipso Facto Clauses and Licensing Agreements in Cross‐Border Insolvencies
Author(s) -
Hoffmann Jan Felix
Publication year - 2018
Publication title -
international insolvency review
Language(s) - English
Resource type - Journals
SCImago Journal Rank - 0.125
H-Index - 7
eISSN - 1099-1107
pISSN - 1180-0518
DOI - 10.1002/iir.1312
Subject(s) - insolvency , de facto , law and economics , business , political science , economics , law
Abstract Executory contracts raise difficult substantive and procedural questions under insolvency law. This essay tries to point out two prominent phenomena of substantive law concerning the treatment of executory contracts. Ipso facto clauses and licensing agreements will serve as examples in order to find suitable conflict‐of‐law rules in cross‐border insolvencies. So far, there has been no fundamental debate on the application of the lex fori concursus to executory contracts. In recent rulings national courts have, however, refused to apply the lex fori concursus to executory contracts in cross‐border insolvency cases when ipso facto clauses or licensing agreements were involved. This essay pleads against the sole application of the lex fori concursus and critically analyses the concept of the European Insolvency Regulation concerning executory contracts. Copyright © 2018 INSOL International and John Wiley & Sons, Ltd.