In the 1990s, English common law, and the jurisdictions inspired and influenced by it, were at the forefront of promoting the concept of what is widely referred to as "modified universalism" in insolvency and restructuring law. British judges were well placed to influence the trajectory of common law through the jurisdiction of the Judicial Committee of the Privy Council (hereinafter referred to simply as the "Privy Council") ' the tribunal of last resort for a number of Commonwealth jurisdictions ' and the normative effect of their judgments through the wider corpus of common law jurisdictions.
Lord Hoffmann
Lord Leonard "Lennie" Hoffmann, a member of the House of Lords (precursor to the Supreme Court) and the Privy Council, was responsible for several judgments and decisions that shaped this area of the law. Perhaps his commitment to comity and universality reached its apogee in two decisions, one in which Lord Hoffmann delivered the judgment on behalf of the Privy Council, Cambridge Gas Transport Corp. v. The Official Committee of Unsecured Creditors of Navigator Holdings PLC and others (on appeal from the High Court of Justice of the Isle of Man) in 2007, and the other as a member of the House of Lords, HIH Casualty & General Insurance Ltd. Re in 2008.1 Lord Hoffmann provided a clear exposition of the principle of modified universalism in his judgment in HIH:
The primary rule of private international law which seems to me applicable to this case is the principle of (modified) universalism, which has been the golden thread running through English cross-border insolvency law since the 18th century. That principle requires that English courts should, so far as is consistent with justice and U.K. public policy, co-operate with the courts in the country of the principal liquidation to ensure that all the company's assets are distributed to its creditors under a single system of distribution.2
Universalism was never an absolute principle but was modified by considerations of public policy, which allowed for consideration of fairness and due process, and a degree of territorialism was allowed to also intrude, hence the phrase "modified universalism."
The approach of the common law was but tressed by a specific statutory provision, ' 426 of the Insolvency Act 1986, requiring U.K. courts to give assistance both within the U.K. and to the courts of designated territories upon receipt of a letter of request, discretion to be exercised with regard to the rules of private international law. The designated territories are predominantly commonwealth territories.
Underlying this jurisprudence, there was a wider sense of where the U.K. fit in the community of nations, in part through the prism of its imperial past. As a country, the wide use of common law in commercial transactions ' not only in the Commonwealth but within emerging markets (notwithstanding that in many cases they had civil law traditions) ' added to the sense of purpose and the sense of confidence in a post imperial age. These common law developments will be called "the first limb" of the onward march of modified universalism.
European Legislation
In parallel with these common law developments, through its...
