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Banking and Finance Law Review. Volume 20, Number 2 (2005), p. 38.


Consistent with prevailing neo-liberal ideologies, the Canadian bankruptcy system has become increasingly privatized. Parties have been left to bargain in the shadow of the law to determine which businesses will be rehabilitated, and how best to deal with those businesses' financial difficulties. The Canadian judiciary facilitates the process, but it is largely the debtor corporation and its major creditors that drive it. Situated in this context, this commentary considers the broader issue of how contracts entered into by a debtor corporation prior to bankruptcy will be treated on the bankruptcy of the debtor corporation. It focuses in particular on successor employer liability issues. The treatment of employees in bankruptcy brings into focus the potential inequities that can surface when the rights of third parties can be negotiated away without their consent, in what is, in practice at least, an increasingly privatized bankruptcy process.

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