Faculty of Education, Social Sciences and Law

School of Law

Professor Gerard McCormack

Professor of International Business Law

I was previously a professor of Law at the University of Manchester as well as Professor of Law and Dean of the School of Law at the University of Essex.

I taught at Queens University Belfast and the University of Southampton. I was a Visiting Professor at the National University of Singapore and a Marie Curie Fellow at the Centre for European Law and Politics, University of Bremen.

Research Interests

My research interests are in the corporate and commercial field, with particular emphasis on the interaction of law and business.

I also have an interest in property law and the harmonisation of law. Currently I am Principal Investigator on a number of projects that have been funded by the European Commission to the extent of €800,000.

One “Security Rights and the European Insolvency Regulation” will critically analyse and evaluate the provisions governing rights in rem (security rights) and transactional avoidance in the European Insolvency Regulation (Regulation 1346/2000) and address whether there is scope for reform of the law. 

The second – a study for the Commission on substantive insolvency law and the prospects for greater EU harmonisation – involves colleaues Andrew Keay, Sarah Brown and Judith Dahlgreen from the University of Leeds, and a team of national reporters collecting data on insolvency law matters in the 28 EU Member States.  The Leeds project team will then carry out  horizontal, cross-cutting analysis of the data; identifying areas where  disparities in national laws produce problems that have impacts outside national boundaries. The comparative evaluation and analysis will be approached from the perspective of creating an environment that tries to avert business and personal economic failure but, at the same time, sanctions severely conduct that constitutes an abuse of the fundamental freedoms underpinning the EU legal order. The report and analysis is intended to achieve a greater concordance between insolvency law, the regulatory instruments of insolvency practice, and the Europe 2020 growth strategy of fostering economic recovery and sustainable growth.  The objective is to facilitate a situation where economic and social systems are adaptable, resilient and fair; where economic activity is sustainable and where human values are respected.

Teaching

My postgraduate teaching is in the areas of International Corporate Rescue, International Insolvency Law, International Law of Credit and Security and International Trade Finance Law.

In recent years I have also taught trusts at undergraduate level.

PhD Supervision

I have successfully supervised PhD students, including those working on International harmonisation efforts, comparative bankruptcy law and reform in China, corporate governance with particular reference to developing countries, banking and (Islamic banking) law.

I welcome applications from candidates in these and other areas of international and business law.

 

Key Publications

Books

  • McCormack G, Secured Credit and the Harmonisation of Law (Edward Elgar, 2011)
    DOI: 10.4337/9780857933454

    This is a very timely book that addresses an important subject, namely, attempts to harmonise the law governing secured transactions.

  • McCormack G, Corporate Rescue Law - An Anglo-American Perspective (Edward Elgar Publishing, 2008), 1-307

    Author URL [www.e-elgar.com]

    This book offers and unprecedented and detailed comparative critique of Anglo-American corporate bankruptcy law. It challenges the standard characterisation that US law in the sphere of corporate bankruptcy is 'pro-debtor' and UK law is 'pro-creditor', and suggests that the traditional thesis is, at best, a potentially misleading over-simplification. I conclude that there is some functional convergence in practice, while acknowledging that corporate rescue, as distinct from business rescue, still plays a larger role in the US. The focus is on corporate restructurings with in-depth scrutiny of Chapter 11 of the US Bankruptcy Code and the UK Enterprise Act.

  • McCormack G, Secured Credit under English and American Law (Cambridge University Press, 2004), xii,424p

Journal articles

  • McCormack G, ‘US exceptionalism and UK localism? Cross-border insolvency law in comparative perspective’, Legal Studies, 36.1 (2016), 136-162
    DOI: 10.1111/lest.12096, Repository URL: http://eprints.whiterose.ac.uk/87076/

    © 2016 The Society of Legal Scholars.This paper addresses how the UNCITRAL Model Law on Cross-Border Insolvency has been implemented and interpreted in the US and the UK. The Model Law has attained a measure of international acceptance and is intended to achieve greater efficiencies in the administration of insolvency cases with transnational dimensions. But different manners of implementation in different countries and differing interpretations may hinder the prospects for harmonisation and coordination of laws. The paper will address in particular whether US interpretations differ from those in the UK and whether the US decisions are so infused with 'American exceptionalism' that they cannot be relied upon as sure guides in other countries.

  • McCormack G, ‘Something Old, Something New: Recasting the European Insolvency Regulation’, Modern Law Review, 79.1 (2016), 121-146
    DOI: 10.1111/1468-2230.12169, Repository URL: http://eprints.whiterose.ac.uk/91886/

  • McCormack G, Hargovan A, ‘Australia and the International Insolvency Paradigm’, Sydney Law Review, 37.3 (2015), 389-416
    Repository URL: http://eprints.whiterose.ac.uk/88861/

    Australia’s response to international insolvency is the Cross-Border Insolvency Act 2008 (Cth), which implements the UNCITRAL Model Law on CrossBorder Insolvency. The Act is designed to facilitate international trade and investment by improving the administration of cross-border insolvency cases, including the recovery of assets located overseas. However, the Act is not a comprehensive international insolvency statute. Apart from the ubiquitous and overarching common law and the Cross-Border Insolvency Act, Australian law relevant to cross-border insolvency includes the Corporations Act 2001 (Cth) ss 580–81, s 583 and s 601CL (the ancillary liquidation provision). Currently, the procedures overlap in a complex and confusing way, with cases potentially falling through gaps in the law and important provisions being overlooked. The end result for the administration of cross-border insolvency cases is incongruity and inconvenience, with added cost and complication. The time has come for a rethink and redesign of Australia’s international insolvency framework. The revised framework should include reconceptualisation of the basis for international insolvency cooperation, with incorporation of the Model Law standards as the basic threshold for insolvency assistance and provision for enhanced cooperation and assistance in certain circumstances. The conceptual redesign should also tackle some of the current limitations of the Cross-Border Insolvency Act

  • McCormack G, ‘Reforming the European Insolvency Regulation: A Legal and Policy Perspective’, Journal of Private International Law, 10.1 (2014), 41-67
    DOI: 10.5235/17441048.10.1.41, Repository URL: http://eprints.whiterose.ac.uk/91885/

    This paper will critically evaluate the proposals for reform of the European Insolvency Regulation - regulation 1346/2000 - advanced by the European Commission. While criticised by some commentators as unsatisfactory, the Regulation – is widely understood to work in practice. The Commission proposals have been described as 'modest' and it is fair to say that they amount to a 'service' rather than a complete overhaul of the Regulation. The proposals will be considered under the following heads (1) General Philosophy; (2) Extension of the Regulation to cover pre-insolvency procedures; (3) Jurisdiction to open insolvency proceedings; (4) Co-ordination of main and secondary proceedings; (5) Groups of Companies; (6) Applicable law; (7) Publicity and improving the position of creditors. A final section concludes. The general message is that while there is much that is laudable in the Commission proposals, there is also much that has been missed out, particularly in the context of applicable law. The proposals reflect an approach that, in this particular area, progress is best achieved by a series of small steps rather than by a great leap forward. This is not necessarily an approach that is mirrored in other areas of European policy making.

  • McCormack G, ‘Bankruptcy forum shopping: The UK and US as venues of choice for foreign companies’, International and Comparative Law Quarterly, 63.4 (2014), 815-842
    DOI: 10.1017/S0020589314000396

    © 2014, Cambridge University Press. All rights reserved.This paper critically evaluates 'forum shopping' possibilities offered by the UK and US in bankruptcy/insolvency cases. While recognizing that in some quarters forum shopping has a bad name, the paper makes the point that strategic manoeuvring and transaction planning is what litigation and case management is all about. Certain countries are popular as forum shopping venues because of substantive law or the procedural advantages brought about by litigating in that country. The paper concludes that while the UK may have shut its doors too firmly against foreign forum shoppers, the US is too much a safe haven. The paper calls for a measure of jurisdictional restraint through raising entry barriers. While a bit of jurisdictional competition in insolvency law-making may be no bad thing, the US approach runs the risk of undermining important policies considered important by other countries such as the protection of employees and the public purse. It is also asymmetrical in that US bankruptcy jurisdiction is assumed in situations where, if foreign countries had acted on a similar basis, US recognition of the foreign proceedings would be denied.

  • McCormack G, ‘Reconciling European conflicts and insolvency law’, European Business Organization Law Review, 15.3 (2014), 309-336
    DOI: 10.1017/S1566752914001153

    © 2014 T.M.C.ASSER PRESS.Abstract This paper focuses critically on European conflicts and insolvency law - examining and evaluating the relationship between the Jurisdiction and Judgments Regulation and the Insolvency Regulation. The Regulations are founded on the notion of judicial cooperation in civil matters linked to maintaining and developing an area of freedom, security and justice. The paper asks whether these high-minded ideals have been achieved in practice. It also asks whether the recent recasting of the Jurisdiction and Judgments Regulation, and the proposals for revision of the Insolvency Regulation will improve the situation. The paper concludes that the ideals have not quite been achieved and the reform proposals provide only a partial solution.

  • McCormack G, ‘Conflicts, avoidance and international insolvency 20 years on: a triple cocktail’, Journal of Business Law 2013, 141-159

  • McCormack G, ‘Universalism in insolvency proceedings and the common law’, Oxford Journal of Legal Studies, 32.2 (2012), 325-347
    DOI: 10.1093/ojls/gqs008

    This article critically examines the principle, articulated by Lord Hoffmann in leading cases, that universalism in insolvency proceedings is the golden thread of the common law. This principle suggests that there should be a unitary bankruptcy proceeding in a bankrupt's 'home' jurisdiction that applies universally to all the bankrupt's assets and which receives worldwide recognition. The article argues that the principle is not a practical reality in the common law and should not influence the interpretation of the international insolvency agreements to which the UK is a party. It suggests that the common law, instead of reflecting a universalist ideal, has steered a pragmatic middle course that owes more to realpolitik than to principle. This is not surprising given that vital national policies are often at stake in insolvency, and given the mishmash of sometimes competing principles at the heart of the subject such as encouraging the prompt payment of debts, adjustment of prior transactions, restoring the status quo ante, investigating past misconduct and debtor and business rehabilitation. © The Author 2012. Published by Oxford University Press. All rights reserved.

  • McCormack G, ‘COMI and comity in UK and US insolvency law’, Law Quarterly Review, 128 (2012), 140-159

    A critical evaluation of the Model Law on Cross-Border Insolvency and the manner of its implementation in the UK and US, arguing that despite professed intentions, uniform implementation has not been achieved in practice nor has uniformity of interpretation. The latter goal was unrealistic, since the broad institutional and political dynamics in both the US and UK, including Britain's membership of the European Union and the appearance of the European Insolvency Regulation, were always likely to produce divergences of interpretation. Convergence and divergence across three important fronts are explored: "centre of main interests" (COMI) as the basis for recognising foreign main insolvency proceedings; protection of domestic creditors consequent upon recognition of foreign proceedings; and "additional assistance" that may be provided in relation to foreign proceedings. (Quotes from original text).

  • McCormack G, ‘UNCITRAL, security rights and the globalisation of the US Article 9’, Northern Ireland Legal Quarterly, 62 (2011), 485-504

  • McCormack G, ‘American Private Law Writ Large?: The UNCITRAL Secured Transactions Guide’, International and Comparative Law Quarterly, 60 (2011), 597-625

  • McCormack G, ‘Reconstructing European Insolvency Law: Putting in Place a New Paradigm’, Legal Studies 2010, 126-146
    DOI: 10.1111/j.1748-121X.2009.00147.x

  • McCormack G, ‘Jurisdictional Competition and Forum Shopping in Insolvency Proceedings’, Cambridge Law Journal, 68 (2009), 169-197
    DOI: 10.1017/S0008197309000075

  • McCormack G, ‘Corporate Rescue Law in Singapore and the Appropriateness of Chapter 11 of the US Bankruptcy Code as a Model’, Singapore Academy of Law, 20.Special issue (2008), 396-437

Media Contact Areas

I am happy to talk to the media about the following areas:

  • corporate and commercial law, with particular emphasis on the interaction of law and business
  • property law
  • the harmonisation of law.

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