To consider a series of legitimating arguments and point serially to the limitations of each one, and to conclude that legitimation cannot result, may be to misportray legitimation as a chain of arguments as strong as its weakest link rather than as a cable able to bear strain according to the collective power of its (albeit imperfect) strands.89

A further problem may arise if legitimation is seen exclusively as restraint, as all about the limitation of discretionary powers. Subjection to control and accountability may be necessary for legitimation but these factors may themselves be insufficient to guarantee it. Those attributing legitimacy may also demand that the system enables and encourages the protection of substantive outcomes effectively and they may also recognise the legitimacy of genuinely expert management.90

An ‘explicit values’ approach to insolvency law

What lessons does the above discussion provide for those seeking measures and benchmarks for insolvency law? Indeed, whereabouts in the insolvency sphere is the power requiring legitimation? Company law was said to be about the legitimation of corporate managerial power in the hands of directors. Insolvency is more complex because it is the tendency of English insolvency law to take power out of the hands of management and place it, according to various circumstances, with different parties such as creditors, insolvency practitioners91 and the courts themselves. It

89 It might be argued that the strands analogy breaks down where individual strands oppose rather than lie parallel (e.g. employee versus creditor interests). The point, however, is that values may be placed on items in spite of such tensions. Employee and creditor interests are thus valued in spite of the trade-offs which often have to be made between them.

90On restraint versus enabling models of influence (‘red light v. green light’ approaches) see C. Harlow and R. Rawlings, Law and Administration (2nd edn, Butterworths, London, 1997) chs. 2 and 3. On legitimation in general see D. Beetham, The Legitimation of Power (Macmillan, London, 1991); Frug, ‘Ideology of Bureaucracy’;

R. Baldwin and C. McCrudden (eds.), Regulation and Public Law (Weidenfeld & Nicolson, London, 1987) ch. 3; R. Baldwin, Rules and Government (Oxford University Press, Oxford, 1995) ch. 3; Baldwin, Understanding Regulation (Oxford University Press, Oxford, 1999) ch. 6.

91For example, as administrative receivers, administrators and liquidators. Contrast the US concept of ‘debtor in possession’ in Chapter 11 of the Uniform Commercial Code: see J. L. Westbrook, ‘A Comparison of Bankruptcy Reorganisation in the US with Administration Procedure in the UK’ (1990) 6 IL&P 86; Bank of England Occasional Paper, ‘Company Reorganisation: A Comparison of Practice in the US and the UK’ (1983); R. Broude, ‘How the Rescue Culture Came to the United States and the Myths that Surround Chapter 11’ (2001) 16 IL&P 194.

is thus the broad insolvency process in all its dimensions and with its variety of actors that requires legitimation.

A second issue concerns the basis for requiring legitimation. It cannot be assumed that since corporate managerial power in a going concern requires legitimation, insolvency regimes and powers automatically require legitimation. Insolvency processes do, however, impinge strongly upon the public interest in so far as decisions are made about the lives or deaths of enterprises and those decisions affect livelihoods and communities. Insolvency processes also have dramatic import for private rights in so far as, for instance, pre-insolvency property rights and securities can be frozen and individual efforts to enforce other legal rights constrained. On both public and private interest grounds, accordingly, the powers involved in insolvency processes can be seen as calling for strong justification. This, in turn, militates in favour of justifications that have aspects which can be democratically secured (as is appropriate in so far as the public interest is involved) and which involve respect for individual rights (since private interests are at issue).92 The attribution of legitimacy can accordingly be seen against a vision of the insolvency process that is broad enough to encompass legitimating arguments that are based on communitarian approaches as well as expressive of concerns that creditors’ interests be protected. How tensions and trade-offs between different legitimating rationales can be resolved remains, of course, an issue to which we shall return below.

To argue thus, it may be responded, is all very well where insolvency processes have both public and private dimensions, but in relation to some aspects of insolvency there are real disputes as to whether arrangements should be seen as an integral part of the insolvency process and not just as a matter of private debt collection or contracting. (Administrative receivership and types of ‘contractual’ arrangements such as ipso facto clauses in contracts give rise to such issues.)93 Private

92Actors in insolvency processes may, of course, carry out some functions that are oriented towards private interests and some that look to public considerations: thus liquidators both collect and realise assets for distribution to creditors and report directorial ‘unfit- ness’ to the Disqualification Unit of the Insolvency Service as part of the disqualification process. See further S. Wheeler, ‘Directors’ Disqualification: Insolvency Practitioners and the Decision-making Process’ (1995) 15 Legal Studies 283.

93E.g. hire purchase agreements made to terminate on the insolvency of the hirer: see further D. Prentice, ‘Contracts and Corporate Insolvency Proceedings’, paper given at SPTL Seminar on Insolvency Proceedings, Oxford, September 1995. For US treatment of agreements designed to operate only on bankruptcy see Bankruptcy Code 1978 (as amended) s. 365(a)(1) and (b)(1).

contracting, indeed, can be seen as shading into the province of insolvency law so that clear boundaries do not exist.

Such a lack of clear boundaries should not, however, be seen as fatal to the enterprise of measuring insolvency processes. Persons of different political persuasions might be expected to disagree as to the aspects of insolvency processes that require legitimation by democratically secured rather than private rights based arguments. The point is that if legitimation is seen in terms of rationales that reflect both democratic (public) and private rights roots, clarity will be given to evaluations and the extent to which, for example, present arrangements in an area depend on contractarian justifications will be manifest. To explore modes of measuring or legitimating insolvency law is not to suppose homogeneity of political philosophies.

As for the array of rationales that can be used to legitimate powers impinging upon public interests and private rights, these have been identified by Stokes, Frug and others94 and, moreover, are limited in number. As Frug has commented: ‘we have adopted only a limited number of ways to reassure ourselves’95 about the exercise of powers. The rationales can be described as: firstly, formalist, which justifies with reference to the efficient implementation of a statutory or shareholders’ mandate; secondly, expertise-based, which sees managers as worthy of trust due to their expertise and professionalism; thirdly, control-based, which looks to the restrictions imposed on discretions by courts, markets and others; and, fourthly, pluralist, which adverts to the degree of amenability of processes to representations from the public about how corporate affairs should be conducted.96

The justifications of insolvency processes can similarly be seen as dependent not merely on the efficient pursuit of mandates but also on the degree of expertise exercised by relevant actors, the adequacy of control and accountability schemes and the procedural fairness that is shown in dealing with affected parties’ interests.

94See Stokes, ‘Company Law and Legal Theory’; Frug, ‘Ideology of Bureaucracy’. See also B. Sutton (ed.), The Legitimate Corporation (Blackwell, Oxford, 1993).

95Frug, ‘Ideology of Bureaucracy’, p. 1281. The description of rationales that follows in the text paraphrases and reorganises Frug in so far as judicial review is joined with market and other forms of control.

96See also Baldwin and McCrudden, Regulation and Public Law, ch. 3, who, in the public law context, employ the headings: legislative mandate; accountability; due process; expertise; and efficiency.

A final message to be drawn from a discussion of corporate power and its legitimation is that individual justificatory arguments may prove contentious and possess limitations (for example, the proper boundaries for expertise cannot be set without argument) but they may nevertheless possess force and may be combined with other arguments. To argue thus, it should be clear, is at odds with Frug’s well-known attack on the traditional bases for legitimating corporate or bureaucratic power. Frug identifies the four models of legitimation already noted but argues that these fail to legitimate corporate power and stresses that combining them together ‘only shifts the problem of making a subjective/objective distinction away from any particular model and locates it, instead, in the boundaries between different models’.97 For Frug each model fails to provide an objective justification for corporate/bureaucratic power, one free from contention. Linking the different models ‘allows people to believe that although the device they are considering at any particular moment is empty, one of the others surely is better [and] helps theorists convince themselves (and us) that the internal difficulties of each particular story of bureaucratic legitimacy are unimportant’.98

The limitation of Frug’s argument, however, lies in his fundamental idea of justification: in the notion that, without a basis in some objectivity, legitimating arguments lack force. If, as I have already contended, legitimation can be argued for cumulatively so that the justificatory cable is strong in spite of its flawed strands, there is far less of a problem in combining rationales of legitimation. The exercise of power can thus be seen as capable of being rendered acceptable not on the grounds that it is ‘objective in some way’99 but because it is supportable by a thread of different arguments based on a limited number of identifiable rationales that are invoked on a collective basis.100

Measuring the legitimacy of an insolvency process, decision or law, it should be made clear, differs from merely expressing a political opinion on the topic. Persons of opposing political persuasions – with divergent views on the just society – might differ radically in their views on dealing with a troubled enterprise. One individual might favour immediate closure, payment of creditors and reliance on reinvestment to create

97 Frug, ‘Ideology of Bureaucracy’, p. 1378. 98 Ibid., p. 1379. 99 Ibid., p. 1380.

100As Korobkin has argued, there are no ‘clear winners’ in arguments based on competing values, but: ‘much of the purpose of a full debate is to compare the relative strengths and weaknesses of plausible arguments, not to find a clear winner’: see Korobkin, ‘Role of Normative Theory’, pp. 108–9.

jobs. Another might stress the importance of allowing time for reorganisation because of the high premium he or she places on continuity of employment and avoidance of the external costs that closure might occasion.101 An exchange of such political views would not, however, amount to a discussion of the legitimacy of the proposed move. To debate legitimacy, as conceived here, involves a stepping back and reference, not to personal preferences or visions, but to values enjoying broad acceptance as consistent with the underpinnings of democratic liberalism. The four key values referred to build on Frug: thus ‘efficiency’ looks to the securing of democratically mandated ends at lowest cost; ‘expertise’ refers to the allocation of decision and policy functions to properly competent persons; ‘accountability’ looks to the control of insolvency participants by democratic bodies or courts or through the openness of processes and their amenability to representations; and ‘fairness’ considers issues of justice and propensities to respect the interests of affected parties by allowing such parties access to, and respect within, decision and policy processes.102

To be clear, these are, accordingly, not offered as values plucked from the sky but as values that would be endorsed by parties of differing political persuasions – provided that those parties endorse democratic liberalism – albeit in their own precise terms. Such a ‘values’ argument103 thus proceeds to normativity from the factual assumption that certain values are broadly accepted and by asserting that it is, therefore, right that insolvency regimes should be designed and operated to serve those values. Such an approach does not offer the certainty or the authority that flows from a single theoretical vision of the just insolvency system but it is on much safer practical ground. It is inconceivable that all persons can be persuaded to share the same single theoretical vision (we will never all be Rawlsians or Jacksonians) but it is far safer to assert that we all share an acceptance of certain values: for instance, those served by pursuing democratically mandated ends without waste or by operating procedures that are accountable, open and fair to affected

101See L. J. Rusch, ‘Bankruptcy Reorganisation Jurisprudence: Matters of Belief, Faith and Hope’ (1994) 55 Montana L Rev. 16, arguing that competing theories of bankruptcy law reduce to competing ‘beliefs and values’ which cannot be shown to be true or false (discussed in Korobkin, ‘Role of Normative Theory’).

102Such a notion of justice, accordingly, has procedural and substantive aspects – whether a process accords respect to an interest can be seen as a procedural issue but defining who constitutes an ‘interested party’ raises substantive issues.

103On ‘values’ approaches see Korobkin, ‘Role of Normative Theory’ pp. 104–11.

parties.104 As Korobkin has pointed out, such ‘value’ arguments are not completely authoritative – they do not attempt to set out an authoritative basis upon which to justify or act – but: ‘they have a certain kind of normative force, in that they identify what we value and cite coherent reasons to adopt a particular critical claim’. In essence they allow the proposer of a course of action to say: ‘We should do X because this course will serve the values we all acknowledge’ rather than: ‘We should do X because this course will serve my vision of the just society, which you should all accept.’

What, though, of the difficulty, noted above, of tensions and trade-offs between different legitimating values or rationales? Surely some such rationales will pull in opposite directions? How, moreover, will the above justificatory principles influence the concrete decisions to be confronted by insolvency law, for example whether English insolvency law might introduce some variant of debtor in possession?

The answer to these questions is that clarity concerning the measures of insolvency law can be seen as clarity concerning the values that can be served by such laws. Such clarity, however, does not produce cut and dried answers on whether particular trade-offs between, for instance, protections for secured creditors and for employees are desirable or not. The rightness or wrongness of particular trade-offs can only be argued for by giving weightings or priorities to the protection of different values or interests. Such weightings and priorities presuppose substantive visions of the just society and, accordingly, persons of different political persuasions might be expected to differ on the ‘right’ balancing of different interests in insolvency.

The approach to evaluation offered here may produce no fine-tuned answers on either procedural or substantive issues (to demand such answers would be to ask for conversion to a particular ethical or political vision). The approach, nevertheless, does have force in identifying the values and rationales that can be accorded currency in debates on insolvency law. It can, accordingly, be termed an ‘explicit values’ rather than a multiple value vision of insolvency processes. The explicit values perspective brings the advantage of making clear the need for and nature of trade-offs. Thus, in discussing whether a variant of debtor in possession ought to be introduced into English insolvency law, an assessment

104We can thus all agree that processes should be fair (procedurally and substantively) even though we might, at the end of the day, disagree on the details, e.g. concerning the parties whose interests entitle them to participation in a process.

would be made of the support that such a measure would merit under the various legitimating headings made explicit above. Relevant questions would be: is this a process that allows Parliament’s will to be effected without waste of resources? Can appropriate expertise be applied in such processes? Are levels of accountability acceptable? Can the proposed processes be deemed fair as giving due access to and respect for the interests of affected parties? The issue of trade-offs would, nevertheless, remain, but final political judgements would be made with a transparency that would be lacking were reference not made to the array of values or rationales described here.

That transparency, it must be conceded, cannot be complete. Such a state of affairs could only be achieved by persuading all parties to agree to a single vision of the just insolvency regime as derived from a single vision of the just society.105 This sort of agreed vision would form a basis for clarity on, for example, the level of expertise that is appropriate in a process or how, precisely, we can delineate acceptable standards of access or qualifying interests. It is not, however, an agreed vision liable to be encountered in the real world. What the ‘explicit values’ approach offers, accordingly, is something more realistic but less neat. It offers no ideal vision aimed at universal subscription but a means of bringing a degree of clarity to evaluative discussions while accepting that we may all differ in our conceptions of the just society or the just distribution of rights in insolvency. It explains how, with such differing conceptions, and in the

105LoPucki has spoken of a debate between bankruptcy scholars as involving the ‘Paradigm Dominance Game’ which aims not to solve problems but ‘to get everyone thinking about the problem in one’s own frame of reference and talking about it in one’s own language’: see L. M. LoPucki, ‘Reorganisation Realities, Methodological Realities, and the Paradigm Dominance Game’ (1994) 72 Wash. ULQ 1307, 1310; and Korobkin, ‘Role of Normative Theory’. For an essay in promulgating a single vision see Mokal’s ‘Authentic Consent Model’ (in Corporate Insolvency Law ch. 3) which adapts Rawlsian principles for ‘analysing and justifying’ the body of corporate insolvency law. Sceptics are liable, however, to ask why any non-Rawlsian should be expected to buy into such a vision and are liable to object that Mokal’s use of a Dramatic Ignorance device is question-begging because the Rawlsian consent position is set up on the basis of prior and key assumptions of a contentious nature – notably regarding the political conception of the person (an ‘ideal of the individual’) and the ‘legal and political culture of society’. For further concerns regarding this approach see Duggan, ‘Contractarianism and the Law of Corporate Insolvency’, pp. 463–81 and Goode, Principles of Corporate Insolvency Law, p. 48, who criticises those who espouse variants of the creditors’ bargain theory on the grounds that: ‘most of them assume an original position in which the various players and the bargain they make act in an economically rational manner according to a single set of criteria. This may be an elegant model but has no necessary connection with fact.’

face of mandates that are less than certain, we can still have meaningful debates on insolvency processes or reforms – and can do so in examining how different values are collectively served. It accepts that there are no knock-down arguments in such debates, only those of greater or lesser persuasive power.

Assessing the legitimacy of insolvency processes or decisions is not, however, the same thing as assessing the formal legitimacy of an insolvency law or statute. As noted, one benchmark for processes or decisions is the extent to which a statutory mandate is efficiently implemented. Where a clear mandate exists this, indeed, provides a very compelling yardstick for measuring an insolvency decision or process, and some aspects of insolvency processes do involve agents in implementing quite clear, almost mechanical, tasks as set down in statutes: for example, the liquidator’s statutory duty in voluntary winding up to distribute pari passu.106 To the extent that such clear mandates are lacking – and it is not always possible to produce a clear prescription as opposed to a conferring of discretions, or a listing of factors to be taken into account or a stipulation of proper purposes for action107 – there is all the more need to legitimate with reference to the expertise, accountability and fairness justifications. Put another way, it is because mandates are often unclear that justifications based on expertise, accountability and fairness come into play. In such circumstances, these procedural rationales have a value that is freestanding and possessing of legitimating force within a democracy – and this is why they are not merely aspects of the mandate. To take the examples of accountability and fairness, it can be argued that if a procedure is appropriately open, controlled, amenable to access and respectful of affected interests, this allows the public and affected parties a degree of representation that, in a democracy, compensates for vagueness in the mandate by allowing them to shape the mandate in its application.

It might, of course, be objected that, without a single agreed notion of the just society, it is as impossible to say what procedural fairness amounts to as it is to give content to the notion of substantive fairness. The real world challenge is, however, not to sell a concept of justice to the

106See Insolvency Act 1986 s. 107.

107See e.g. the Insolvency Act 1986 Sch. B1, paras. 3(1), (2), (3), (4) regarding the administrator’s functions. On strong versus weak discretions see Dworkin, Taking Rights Seriously, pp. 31–9, 68–71. On discretion in fact finding see D. J. Galligan,

Discretionary Powers: A Legal Study of Official Discretion (Clarendon Press, Oxford, 1986) pp. 34–7.

general population but to find what coherence we can in a world of different visions and preferences – to explain how we can debate insolvency (or other) processes when we hold divergent views concerning justice, fairness, accountability and so on.108 The contention here is that we can engage in such debates, and find a level of coherence in these, by using common benchmarks or reference points. In the case of procedural fairness, for instance, parties can – necessarily in a broad church manner – agree that this demands that persons or firms with affected interests should be allowed an access to processes that implies a respect for their interests. The fact that people with different visions of justice will disagree at the end of the day on the weighting of various interests is not, on such a view, fatal to a debate that makes reference to a series of democratically valued (but elastic) yardsticks.

Would it not be circular, however, to evaluate an insolvency law by asking (inter alia) whether it implements a statutory mandate? If a judicial application of a statute is at issue then circularity is avoided since it makes sense to ask if, in a particular instance, a judge’s ruling derives legitimacy from its clear implementation of Parliament’s will as expressed in a statute (again there may or may not be a clear expression of the mandate available). What of an actual or proposed statutory provision? Does reference to the implementation of a statutory mandate involve circularity? This may not necessarily be the case. Where there is a clear policy or practice laid down then it may be claimed that Parliament’s will is being effected and there is a high degree of legitimacy involved, though it will still be possible to consider whether a reform of the provision would be supportable on grounds other than mandate implementation. If, however, the provision at issue merely confers discretion (while, perhaps, laying down factors for consideration) it can be contended that there is not so much an expression of Parliament’s voice as a delegation on the substantive issue. The legitimacy of any decision or act taken in implementation of such a provision would accordingly fall to be judged with reference to a series of rationales since the mandate justification only renders the others irrelevant where there is absolute clarity of the mandate.

Does this mean that an insolvency law is worthy of support provided that it has proper statutory form? Again this is not necessarily the case. It

108See also Korobkin’s argument that different kinds of insolvency theory can be thought of as doing different jobs – for example explaining events, offering predictions or providing normative prescriptions. (Korobkin, ‘Role of Normative Theory’ at p. 96.)

means that a very high level of democratic legitimacy is assured to a statutory insolvency provision provided that the statutory mandate is absolutely clear (a rare event). Where it is not possible to lay down a statutory provision that dictates a result with clarity, the other benchmarks come into play and reference can be made to expertise, accountability and fairness considerations in evaluating the provision and its anticipated effects.

The implication of this argument, it might be contended, is that if Parliament decrees something (anything) on insolvency with a clear voice then this is hardly challengeable. The response is that it is difficult to deny the democratic authority of our democracy’s most authoritative voice but that evaluation by the hypothetical or proposed reform method noted above is still possible. In the vast majority of instances, where Parliament does not dictate a result but leaves issues and discretions open (or indeed in debating proposed legislation), evaluations may be made with reference to the array of legitimating rationales: asking, for example, of a proposed insolvency provision, whether it will produce results that are supportable according to expertise, accountability and fairness as well as the mandate rationales. Such evaluations may be made of and by the various actors involved in the insolvency processes: for example, judges, administrators, nominees under voluntary arrangements and liquidators.109

Where, though, does this leave economic efficiency in the wealth maximisation sense as a benchmark for insolvency regimes?110 The

109Liquidators may implement statutory mandates mechanically in distributing assets pari passu, but discretion is involved in their ‘policing’ functions (e.g. whether to initiate proceedings under inter alia the Insolvency Act 1986 ss. 214, 238 or 239) and in their reporting ‘unfit’ directorial conduct to the Disqualification Unit: see Wheeler, ‘Directors’ Disqualification’, pp. 300–1.

110Economists use ‘efficiency’ in a number of senses and it is as well to be clear about these. The notion of allocative efficiency is commonly used in two ways. A situation is Pareto efficient if the welfare of one individual cannot be improved without reducing the welfare of any other member of society. In contrast, a situation is Kaldor–Hicks efficient if those who gain could in principle compensate those who have been harmed by a position and still be better off. (This efficiency can also be referred to as cost–benefit analysis, wealth maximisation, allocative efficiency or simply efficiency.) Technical efficiency (or transaction cost efficiency) is concerned with achieving desired results with the minimum use of resources and costs and the minimum wastage of effort. Dynamic efficiency refers to the capacity of a given system to innovate and survive in a changing and uncertain environment. In this book the word ‘efficiency’ will be used to denote technical efficiency, and ‘economic efficiency’ will refer to efficiency in the Kaldor–Hicks/wealth maximisation/cost–benefit sense. On efficiency concepts and

wealth maximisation argument was criticised above as offering little assistance on distributional matters.111 We have seen that clear mandates are rare in the insolvency field and it is not advisable, in the absence of clear mandates, to leap to wealth maximisation itself as the next best statement of substantive objectives. Wealth maximisation, accordingly, will be treated, in this volume, as having no freestanding value as an objective of insolvency processes. Note will, nevertheless, be taken of influential debates concerning the economic efficiency/wealth maximising (hereafter ‘economic efficiency’) effects of certain processes – since, on a given issue, elective bodies may – or may not – be inclined to pursue such economic efficiency objectives.112

As for matters of technical efficiency (hereafter ‘efficiency’), it is possible to respond to economists’ concerns regarding the minimising of transaction costs and to treat these as ancillary to discussions of democratically legitimate objectives (or mandates) and questions of expertise, accountability and fairness. This can be done by considering whether the processes at issue avoid unnecessary transaction costs – an approach that allows existing legal provisions and procedures to be evaluated but also offers some scope for evaluating proposals. A basis for criticising a legislative proposal (for instance a clause in a Bill) might,

corporate law see A. Ogus and C. Veljanovski, Readings in the Economics of Law and Regulation (Oxford University Press, Oxford, 1984), pp. 19–20; Ogus, Regulation, pp. 23–5; Law Commission, Company Directors: Regulating Conflicts of Interests and Formulating a Statement of Duties, LCCP 153, SLCDP 105 (TSO, London, 1998) part III; S. Deakin and A. Hughes, ‘Economics and Company Law Reform: A Fruitful Analysis?’ (1999) 20 Co. Law. 212; Deakin and Hughes, ‘Economic Efficiency and the Proceduralisation of Company Law’ [1999] CfiLR 169; J. Armour, ‘Share Capital and Creditor Protection: Efficient Rules for a Modern Company Law’ (2000) 63 MLR 355.

111See note 36 above, accompanying text, and, notably, Dworkin, ‘Is Wealth a Value?’. A key reason why principles of wealth maximisation offer no basis for guiding distributional decisions is that this would involve circularity – judgements regarding the actions that would maximise total wealth can only be made by making prior assumptions about the distributions of wealth in society. See e.g. R. Coase, ‘The Problem of Social Cost’ (1960) 3 J Law and Econ. 1; A. Kronman, ‘Wealth Maximisation as a Normative Principle’ (1980) 9 Journal of Legal Studies 227.

112The economic efficiency or otherwise of a process or institution is thus seen as contingently relevant – when, for instance, statutory objectives aim for such economic efficiency. In the absence of a link to a mandate, economic efficiency is not treated here as a factor of independent value. This treatment of economic efficiency contrasts with that accorded to, say, accountability which is seen as having a value independent of the mandate – indeed as a counterbalance to any lack of clarity in the mandate. On the value of considering economic efficiency as one of a number of evaluative criteria see A. Keay, ‘Directors’ Duties to Creditors: Contractarian Concerns Relating to Efficiency and Over-Protection of Creditors’ (2003) 66 MLR 665, 678.