143
views
0
recommends
+1 Recommend
1 collections
    0
    shares
      • Record: found
      • Abstract: found
      • Article: found
      Is Open Access

      Post-Commencement finance - Domiciled resident or uneasy foreign transplant?

      research-article

      Read this article at

      Bookmark
          There is no author summary for this article yet. Authors can add summaries to their articles on ScienceOpen to make them more accessible to a non-specialist audience.

          Abstract

          The 2008 Companies Act 71 of 2008 introduced a new business rescue regime into South African company law, bringing it into line with trends in developed countries, particularly the United States. Indeed, it appears that the United States Chapter 11 model was followed in this process, introducing the business rescue concept as a legal transplant. Corporate law is well suited to legislative borrowing, but there are important caveats to bear in mind when doing so. In particular: the context and legal culture of the country of origin may differ from those of the destination country. South Africa's commercial environment is different from that of the United States, problematising a transplant of Chapter 11's concepts. Post-commencement finance will be used as a micro-study of this broader phenomenon, and this topic will be investigated with comparative reference to the position in the United States. It will be argued that an essential difference between the two procedures is the lack of legislatively mandated court oversight in South Africa. This impacts on the interests of creditors, as well as on the availability of fresh finance. This results in problems in the implementation of the post-commencement finance provisions, which threaten the viability of this particular legal transplant.

          Related collections

          Most cited references54

          • Record: found
          • Abstract: not found
          • Article: not found

          ON USES AND MISUSES OF COMPARATIVE LAW*

            Bookmark
            • Record: found
            • Abstract: not found
            • Article: not found

            Legal Transplants: An Approach to Comparative Law

              Bookmark
              • Record: found
              • Abstract: not found
              • Article: not found

              Contemporary Company Law

                Bookmark

                Author and article information

                Contributors
                Role: ND
                Role: ND
                Journal
                pelj
                PER: Potchefstroomse Elektroniese Regsblad
                PER
                Publication of North-West University (Potchefstroom Campus) (Potchefstroom, North-West Province, South Africa )
                1727-3781
                2017
                : 20
                : 1
                : 1-41
                Affiliations
                [02] orgnameUniversity of Cape Town South Africa andrew.hutchison@ 123456uct.ac.za
                [01] orgnameUniversity of Cape Town South Africa helena.stoop@ 123456uct.ac.za
                Article
                S1727-37812017000100021
                10.17159/1727-3781/2017/v20n0a1370
                b3dda054-8d12-48a8-9b60-218794e8982d

                This work is licensed under a Creative Commons Attribution-ShareAlike 4.0 International License.

                History
                Page count
                Figures: 0, Tables: 0, Equations: 0, References: 54, Pages: 41
                Product

                SciELO South Africa


                Company law,business rescue,post-commencement finance,secured credit,United States Chapter 11,legal transplants,court oversight

                Comments

                Comment on this article