It has been argued in previous work that Hedley Byrne v Heller addressed no actual mischief. In the case itself, the defendant's credit reference about Easipower Ltd. was neither a misstatement nor negligently given, and in general the indemnification of reliance on negligent statements is far better regulated by contract than it can possibly be by negligent misstatement. This paper expands on the significance of contract relative to tort in Hedley Byrne, but mainly argues that the mischief perceived by the claimant was caused by the operation of the statutory regime regulating Easipower's insolvency. This makes regarding Hedley Byrne as a necessary response to “the privity of contract fallacy” even more implausible.

Certain insolvency law rules, like creditors' priorities and set-off rights, have a distributive impact on creditors. Distributional rules reflect the hierarchies of values and interests in each jurisdiction and, as a result, have high political relevance and pose an obstacle to reforming the EU Insolvency Regulation. This paper will show the difficulty of reform by addressing two alternative options to regulate cross-border insolvencies in the European Union. The first one is the ‘choice model’, under which companies can select the insolvency law they prefer. Although such a model would allow distressed firms to select the most efficient insolvency law, it would also displace Member States’ power to protect local constituencies. The choice model therefore produces negative externalities and raises legitimacy concerns. The opposite solution is full harmonisation of insolvency law at EU level, including distributional rules. Full harmonisation would have the advantage of internalising all externalities produced by cross-border insolvencies. However, the EU legislative process, which is still based on negotiations between states, is not apt to decide on distributive insolvency rules; additionally, if harmonisation includes such rules, it will indirectly modify national social security strategies and equilibria. This debate shows that the choice regarding power allocation over bankruptcies in the EU depends on the progress of European integration and is mainly a matter of political legitimacy, not only of efficiency.

The Union legislator and the ECJ are trying to prevent forum shopping in cross-border insolvency cases through recourse to the following legal instruments: (1) guiding the process of interpreting the notion of COMI and determining that COMI in practice so as to avoid forum shopping; (2) determining the moment relevant for establishing the debtor's COMI, which should be relatively early; (3) introducing the perpetuatio fori principle that can frustrate debtors' attempts to transfer their COMI to another Member State; and (4) making it impossible to change international jurisdiction in cross-border insolvency matters after insolvency proceedings have been opened. However, there is no need to exclude the possibility of a transfer of the debtor's COMI that leads to the effective change of international jurisdiction before the request for the opening of insolvency proceedings is lodged, as it would be contrary to the freedom of establishment. It is thus submitted that in order to facilitate the exercise of fundamental freedoms, international jurisdiction in cross-border insolvency cases should be (de lege ferenda) determined not so much by the COMI as by the location of the registered office (statutory seat) of the debtor.

This comment focuses initially on the way in which cross-border mobility plays a central role in shaping creditor protection regimes across the European Union. We conclude with some preliminary observations about the European Insolvency Regulation and the potential impact of forum shopping on creditors and firms.

Scholars working in the ‘law and finance’ field have investigated empirically the links between various types of law and the incidence of venture capital finance. However, no study to date has systematically investigated the relationship between insolvency law – both personal and corporate – and venture capital finance. This paper argues that a nation's personal insolvency law may have an important impact on the demand for venture capital finance, with more severe treatment of insolvents tending to reduce demand. This hypothesis is subjected to a preliminary test by comparing data on venture capital investment activity with an index of ‘severity’ of insolvency laws, and is not falsified. This finding will be of interest to policymakers, as a number of recent national and EU initiatives have sought explicitly to encourage innovative firms and venture capital finance.