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Set‐off under the European insolvency regulation (and English law)
Author(s) -
McCormack Gerard
Publication year - 2020
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.1373
Subject(s) - insolvency , debtor , creditor , set (abstract data type) , law , bankruptcy , business , meaning (existential) , law and economics , function (biology) , subject (documents) , political science , economics , debt , finance , computer science , psychology , evolutionary biology , library science , psychotherapist , biology , programming language
This paper addresses critically the meaning and effect of the set‐off provisions in the European Insolvency Regulation. The Regulation sets out the authority of EU Member States to open insolvency proceedings and provides that, subject to exceptions, the law of the State that opens insolvency proceedings shall apply to those proceedings. Setoff is one such exception for the opening of insolvency proceedings does not affect the rights of creditors to demand the set‐off of their claims against the insolvent debtor. Set‐off is intended to perform a guarantee type function for creditor claims. Nevertheless, the Regulation does not define what is meant by set‐off nor clarify whether set‐off rights under the law of a third country (such as English law) may be relied upon. The paper provides valuable clarification and critical analysis.