The American Bankruptcy Institute's Proposed Chapter 11 Reforms: Some Canadian Thoughts

Author ORCID Identifier

Stephanie Ben-Ishai: 0000-0001-6587-8971

Document Type


Publication Date


Source Publication

Canadian Business Law Journal, vol. 57, no. 3, March 2016, pp. 343-366.


The American Bankruptcy Institute (the "ABI") recently undertook an in-depth, three-year study, focusing exclusively on the resolution of financially distressed businesses under Chapter II of the Bankruptcy Code. This article describes the ABI's process for studying and making recommendations on the reform of Chapter 11 and compares this process with the Canadian approach to law reform in the insolvency context. Next, the article considers a key aspect of the recommendations coming out of the ABI study: s. 363 sales or in Canada, using the Companies' Creditors Arrangement Act (the "CCAA") to liquidate. The article reviews the ABI recommendations concerning the timing of the sale process and a 60-day post-filing minimum moratorium and evaluates both sets of recommendations in the context of the Canadian data. The ABI recommendations relating to the general provisions and approval process for a s. 363 sale are considered and compared to the Canadian CCAA provisions. Finally, the procedural principles suggested to ensure that creditors are afforded the same level of protection in a sale process as in a Chapter 11 plan process are explained and considered in the Canadian context.

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