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Sender:
Lionel Smith
Date:
Tue, 4 Dec 2007 11:20:49 -0500
Re:
Restitution, tracing and judicial discretion

 

I have sent Chaim some thoughts off-list, so I will only thank Charles for his kind words and note this interesting article,

"Transplanting Equitable Subordination: The New 'Free-Wheeling' Equitable Discretion in Canadian Insolvency Law?" (2001) 36 Canadian Business Law Journal 36-88.

US bankruptcy courts claim discretion to adjust rights not only in tracing situations, but, under the rubric of equitable subordination, whenever there seems to be a good (but non-legislated) reason to downgrade someone’s ranking in the distribution scheme. Telfer reviews this law and looks at some suggestions that it should form part of Canadian bankruptcy law.

  

Lionel

--
"As there were no quales but only tales, it follows that there were not tales because you cannot have a tales without a quales."
Lord Goddard CJ in R. v. Solomon, [1958] 1 Q.B. 203, 208.

  

On 4/12/07 11:03, "Charles Mitchell" wrote:

Dear Chaim

I expect that modesty will prevent him from saying so, but by far and away the best account of the Commonwealth law in this area is Lionel Smith's The Law of Tracing (OUP, 1997), which gives a very full account of the detailed decision-making that you are interested in.


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