example, the USA and Ireland) there is a process of cram-down, whereby the court can overturn the creditors’ decision.184

Moratoria periods again differ. Chapter 11 involves an initial period of 120 days (with a maximum extension to eighteen months)185 whereas in Australia it is twenty-eight days (extendable to sixty), in Ireland it is sixtythree days (extendable to ninety-three), and in Sweden it is typically a maximum of three months (extendable three-monthly to a year). New Zealand introduced a new business rehabilitation scheme for companies (voluntary administration) similar to the voluntary administration operating in Australia but with some flexibility regarding time periods.186

Finally, mention should be made of rescue financing and the provision made for this. In Chapter 11, post-petition financing and supplies can be obtained and priority given to their lender. Super-priority financing is also available in Germany, France, Australia, Sweden and New Zealand, but it is not available in England, although it was proposed by the DTI’s Insolvency Service in 1993 and raised again in the business rescue mechanisms consultations in 1999–2000.187

To summarise this comparative sketch, other countries display a variety of players, processes and priorities in their insolvency and rescue regimes, but in all regimes certain difficult decisions have to be made on such matters as: Who controls corporate rescue operations? What sort of oversight regimes are appropriate? How should rescue needs be balanced against creditors’ rights? Should rescue processes be triggered only on insolvency or near insolvency? Whose voices shall be heard in rescue procedures? Chapters 7–10 below examine how these issues and others are dealt with in England.

Conclusions

In the UK there is a greater stress than ever before on taking early steps to confront corporate troubles and to effect rescues and turnarounds before

184 See IS 2000, Annex A. 185 11 USC s. 1121(d).

186 The NZ Companies Amendment Act 2006 came into effect on 1 November 2007 making amendments to the NZ Companies Act 1993. On voluntary administration see now NZ Companies Act 1993 ss. 239A ff.

187DTI/IS, Company Voluntary Arrangements and Administration Orders: A Consultative Document (October 1993); IS 2000. On the extended, but ultimately fruitless, discussions on super-priority financing that preceded the Enterprise Act 2002 reforms see McCormack, ‘Super-Priority New Financing’. See also ch. 9 below.

there is any need for formal actions. It has been noted, however, that the growth of the credit derivatives market may provide creditors with new options of risk management that cut against the broader trend to pursue rescue options. As for the evaluation of rescue procedures, these are processes that can be assessed in accordance with the measures set out in chapter 2 and, in making such evaluations, interests in addition to those of creditors have to be borne in mind. Rescues involve parties acting with very divergent concerns and interests and rescue processes often demand that important decisions be taken in the most difficult and urgent of circumstances. The procedures that are used in attempts to turn companies around might, accordingly, be expected to be open to serious question when assessments of legitimacy are made. Such assessments demand that the particulars of different rescue arrangements – informal and formal – be dealt with and these are considered in the chapters that follow.