MAKING RESCUE CHOICES FOR FINANCIAL DISTRESS IN GHANA: LESSONS FROM CHAPTER 11 OF U.S.A. BANKRUPTCY CODE
Adarkwah, Samuel Boadi
The past thirty years has seen a tremendous change in the treatment of insolvent companies across the world. The change from liquidation to the rescue of ailing companies has arisen as a result of the introduction of corporate rescue mechanisms like reorganization in U.S and administration and company voluntary arrangement in the U.K. The change in the treatment of ailing companies across the world call into question the operation of the Bodies Corporate (Official Liquidation) Act, 1963 (Act 180) of Ghana. This law has been in operation for over half a century without a single amendment to its provisions. While the fact that the law is dated does not mean that it is ineffective, a reasoned evaluation of the law must suffice before a conclusion that it is ineffective can be made. This study, therefore, put into question the effectiveness of the insolvency law in Ghana. The study uses the U.S as a comparative state and applying the doctrinal and transplant methodological approaches, reveals that not only is the insolvency law in Ghana outdated but also inefficient and ineffective and in need of reform. The study proposes the introduction of rescue mechanism like Chapter 11 style reorganization under the U.S Bankruptcy Code 1978. The study finally calls into question the distributive goals of bankruptcy law. Given that bankruptcy law is a collective procedure premised on the footing that all similarly situated creditors must be treated equally, the concept of statutory priority in bankruptcy law where the law elevates an unsecured creditor above others in the line for payment defeats the equality principle that bankruptcy law provides to similarly situated creditors. This study, therefore, argues for the introduction of a priority cap being a maximum amount in proportion to the value of the assets of the debtor which can be paid to all priority class. All outstanding debts to priority creditors after depleting the maximum amount should be treated as any other unsecured debt to be settled with all general unsecured creditors. This cap will likely return payments to unsecured creditors who often get nothing out of bankruptcy process.
company liquidation in Ghana; History of insolvency law in Ghana; Insolvency Law in Ghana; legal transplant in Ghana; managers and receivers in Ghana; winding up in Ghana; Law
Ndulo, Muna Baron
Hockett, Robert C.; Yu, Xingzhong
JSD of Law
Doctor of Science of Law
dissertation or thesis
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