Monday, 12 April 2010

The Ne Bis In Idem Principle and Bankruptcy

Ne bis in idem (roughly translated as “not twice for the same”) is a legal rule that guarantees freedom from double jeopardy. It is true that bankruptcy (excluding bankruptcy fraud) is not a criminal cause of action and business misfortune may not in any way be stated as being the equivalent of a criminal trial. Nonetheless, when a person’s debts or liabilities grow to the point where his assets sink out of sight and relentless phone calls from creditors ensue and reminders throng his mail box, he is no doubt going through a trial. The visitation of misfortune is a tribulation in its own right especially where the person may be unable to meet his financial obligations due to poor health, "over trading" (not involving inadequate books), failure of large customers to pay invoices, unfortunate speculation or divorce. The unfortunate but honest entrepreneur or worker is declared bankrupt in order to ensure that he is relieved of the payment of certain concomitant obligations. His assets are then distributed to his creditors in an equitable manner and whatever may be salvaged is used to rehabilitate the business or produce a return. If we distinguish between the honest but unfortunate entrepreneur or worker and the reckless and voracious user of credit, it may then be easy to understand why stigmatising the bankrupt is a breach of the spirit of the ne bis in idem rule. Despite many calls over the years to the effect that bankruptcy should be viewed as a cost of innovation or a fact of life, in many quarters, it is still deemed to be the result of atrocious debt management. The fear of being stigmatised then becomes a major obstacle to recovery given that the insolvent expends what is left of his resources and goodwill to avoid the legal process intended to rehabilitate him. Individual Voluntary Arrangements (IVA) (or Protected Trust Deeds in Scotland) are sometimes recommended as a creditable alternative because there is no accompanying stigma, the debtor is not statutorily restricted from obtaining credit or acting as a director of a company and all unsecured creditors are bound by the agreement once entered into. Nonetheless, IVAs are sometimes managed by practitioners who require fees and the process may last for up to 5 years, unlike bankruptcy that may sometimes last for just a year. The insolvent debtor is therefore still subject to a second trial in both instances. Moreover, the debtor cannot always avoid the glare of publicity as papers for example still report about Colin Hendry’s bid to enter into an IVA with his creditors in order to avoid bankruptcy.[1]

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[1] See for example, The Herald at: http://www.heraldscotland.com/news/home-news/bankruptcy-threat-now-hanging-over-braveheart-hendry-1.1014449 [ 12 April 2010]; Daily Record at: http://www.dailyrecord.co.uk/news/scottish-news/2010/04/07/scotland-legend-colin-hendry-avoids-bankruptcy-bid-after-being-given-two-months-to-sort-out-debts-86908-22167449/ [07 April 2010].

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