Intellectual property and insolvency: A case for reform

By Isaac Kundakogo Kunko^*

Intellectual property (IP) has significant private value for businesses and public value when applied to provide goods and services to the public through IP licensing agreements. However, insolvency proceedings can potentially erode this value if IP is overlooked in said proceedings.

With the introduction of Ghana’s Corporate Insolvency and Restructuring Act (Act 1015) in 2020, it was expected that uncertainty regarding IP protection under its predecessor, the Bodies Corporate (Official Liquidations) Act, 1963 (Act 180), would be resolved.

Unfortunately, however, these issues persist. Specifically, there is a lack of clarity regarding how insolvency proceedings account for the value of IP assets and how insolvency affects IP licensing agreements, raising concerns about their continuity and protection of diverse stakeholders’ interests.

This article demonstrates that while the current insolvency framework in Ghana marks significant progress, it fails to adequately account for IP assets and the corresponding intricate licensing issues during insolvency. The article advocates for legislative and strategic reforms to provide greater clarity and protection for qualifying stakeholders.

IP rights have evolved into valuable business assets that foster innovation and significantly contribute to economic growth.[1] IP refers to a category of intangible rights that protects commercially valuable products of the human intellect, including trademark, copyright, and patent rights.[2]

As a member state of the World Trade Organization, Ghana has enacted IP laws in compliance with its obligations under the Agreement on Trade-Related Aspects of Intellectual Property Rights.[3]

However, despite these advancements, there remains a significant gap in Ghana’s legal framework regarding the treatment of IP in insolvency proceedings. Ghana significantly reformed its legal framework for insolvency by introducing Act 1015 in 2020 to replace Act 180, which had existed since 1963.

Yet, there is insufficient clarity on how IP assets are protected within insolvency proceedings and how insolvency affects IP licensing agreements in Ghana. This oversight is concerning given the increasing importance of these intangible assets relative to physical and financial assets.[4]

The article aims to address this gap by exploring the treatment of IP assets and their intricate licensing issues under Act 1015 and proposing necessary reforms.

The article is structured as follows: The first part is the introduction. The second part overviews the context, highlighting the interaction between IP and insolvency as it relates to the research problem. Part three discusses ambiguities regarding the characterisation of IP under Act 1015.

The fourth and fifth parts focus on the treatment of IP assets and licensing agreements during insolvency, respectively. Part six proposes some reforms and the last part concludes.

Context: IP and Insolvency Interaction

Ghana has enacted several IP laws to protect various forms of IP. For instance, Ghana’s Patent Act protects technical inventions, granting owners the exclusive right to exploit the invention for a limited period,[5] typically 20 years.[6]

Similarly, the Trademarks Act protects words, personal names, designs, and other elements used in trade,[7] while copyright protects creative works, including literary, artistic, musical, choreographic, and audio-visual works.[8]

Notably, even before these essential IP laws were enacted, the commercial significance of IP as an asset was recognised in Ghana.[9] However, the colonial objectives behind the early IP laws applied in Ghana did not encourage indigenous inventive activities and industrialisation of the country’s economy.[10]

Over the years, these IP rights have not only been accepted as business assets but have become central to profit ventures through various commercial arrangements, including securitisation.[11]

The securitisation opportunities could extend to licensing royalties,[12] allowing IP owners to build value from their IP assets through licensing opportunities.[13] As commercial assets, IP licenses and their efficient regulation promote successful business models.[14]

For example, consider this scenario: Company A owns the copyright to an innovative software used in mobile money interoperability. Company A enters into a ten-year copyright licensing agreement with Company B, which has developed a large customer base using this software.

Now, assume that one of the parties becomes insolvent during this period. This scenario raises questions that straddle IP and insolvency laws, including the disposition of the IP rights and the continuity of these licensing agreements, particularly executory contracts. Beyond the risks posed to the interests of the parties, a significant concern arises regarding the impact on Company B’s customers, who depend on the software for their personal or business transactions.

This scenario highlights the potential interaction between IP regulations and Act 1015, whose goals may not always align during insolvency proceedings. Act 1015 governs the administration and official winding-up of insolvent companies[15] and defines insolvency as a company’s inability to pay its debts as the debts fall due.[16]

While asset management from an IP perspective focuses on creation and protection,[17] insolvency proceedings aim to maximise the insolvent company’s estate,[18] which may include valuable IP.[19] These IP assets are essential in maintaining a balance between creditors’ interests and the debtor’s obligations during periods of financial distress,[20] necessitating the need for insolvency stakeholders to take IP into account.[21]

This requires special attention because companies may not have their financial position statement or balance sheets visibly reflecting their IPs.[22] In addition to the risks of eroding the private value of IP to companies, insolvency proceedings could potentially affect its public value in downstream commercialisation efforts.[23]

Ambiguities in the Characterisation of IP under Act 1015

Despite the growing importance of IP as a business asset, the lack of explicit recognition of IP under Act 1015 highlights a significant gap in the legal framework that could result in the inconsistent treatment of IP in insolvency.

1.1. Lack of Express Recognition of IP as Property under Act 1015 

Act 1015[24] and its predecessor[25] inadequately define property as ‘movable or immovable property’. The definition is inadequate for recognising IP in insolvency for three reasons. First, Ghanaian courts frequently use the Black’s Law Dictionary as an interpretative tool,[26] which defines movable property as encompassing both tangible and intangible things.[27]

This definition is crucial because, in the case of Madina Shopping Mall Association v. Rosehill Gh. Ltd. & Others,[28] the Ghanaian Supreme Court, per Justice Sophia Akuffo (as she then was), explicitly recognised IP as intangible property and valuable business assets, using the Black’s Law Dictionary as a reference. This precedent strongly suggests that Ghanaian courts will likely classify IP as movable property.

However, Act 1015’s failure to explicitly recognise IP as property under insolvency law introduces a significant risk: insolvency stakeholders may overlook or undervalue IP assets. This oversight could lead to improper valuation and distribution of assets in insolvency cases, undermining the utilization of IP rights in Ghana’s legal and business environment.

Second, in contrast to Act 1015, some common law jurisdictions provide more explicit definitions of the term property in their insolvency laws. For instance, the English insolvency law defines property to include “money, goods, things in action, land and every description of property whatever situated and also obligations and every description of interest, whether present or future or vested or contingent, arising out of, or incidental to, property.”[29] This broad definition explicitly includes intangible property, such as obligations and interests.

Similarly, the United States Bankruptcy Code adopts a broad approach, defining property of the estate to include all the debtor’s legal and equitable interests as of the case’s commencement and interests in property that the trustee recovers after the commencement.[30]

This Code specifically addresses IP.[31] The Canadian Insolvency Act also has provisions on the sale or disposition of IP,[32] while the Nigerian Companies and Allied Matter Act recognises IP and their corresponding licenses.[33] Section 30(1) of the Nigerian Copyright Act also deems copyright to be movable property in the context of compulsory acquisition.[34]

These jurisdictions commit to including intangible property, particularly IP, in their insolvency framework, thereby safeguarding these assets.

Third, the inconsistency between Act 1015 and the Ghana Companies Act—the primary law governing the establishment of companies in Ghana— further exacerbates the problem. Unlike Act 1015, the Companies Act defines property as including equitable or legal rights.[35] This discrepancy creates internal incoherence in the Ghanaian corporate governance framework, leading to potential conflicts in recognising intangible property.

Given the importance of IP for economic activity,[36] it would be helpful for the Ghanaian legislature to expressly recognise intangible property, including IP, in Act 1015. Such recognition would eliminate ambiguity, harmonize Ghana’s corporate governance framework, and ensure that IP assets receive attention during insolvency in Ghana.

1.2. IP as Things in Action in Act 1015

Act 1015 can be interpreted to view IP as things in action within, albeit to a limited extent. Things in action are understood to be personal property of a kind that is enforced via legal action.[37] They include contract rights of all kinds.[38] In Baidoo v. Sam,[39] the Ghanaian Court of Appeal recognised IP as a chose in action[40]— the ancient name for things in action.[41]

However, Act 1015 inconsistently uses the term things in action alongside property in some provisions, creating ambiguity. For example, Section 92(2) gives liquidators the authority to retain control of the company’s property and things in action during official winding up.[42] Furthermore, Section 97(h) permits liquidators to sell the said property and things in action by public auction or private.[43]

The Act provides that a “disposition of the property of the company, including things in action and a transfer of shares is void unless the Court otherwise directs.”[44] This specific provision explicitly suggests that things in action are a subset of property, aligning with international best practices.

However, apart from these three provisions, Act 1015 primarily refers to property without mentioning things in action. Without consistent use of the term things in action within the Act, there is a risk that IP may not be inadequately managed or overlooked, resulting in unintended legal and practical consequences.

Treatment of IP Assets under Act 1015

The treatment of IP assets under Act 1015 could encompass various aspects, including their realisation and securitization.

1.3. Realisation

IP can be used as an asset to settle a debtor’s debts to its creditors.[45] Although difficult to trace and liquidate,[46] some jurisdictions explicitly recognise IP and contractual rights as assets that can be liquidated.[47]

Section 103 of Act 1015 empowers liquidators to realise a company’s assets. However, the Act does not define assets in its interpretation section. Theoretically, this omission allows stakeholders to interpret IP rights and related contracts as assets potentially subject to Section 103.

Nonetheless, stakeholders must consider that delays and coordination problems in an insolvency process could eliminate or compromise the value of IP rights.[48]

For example, occurrences during insolvency, such as the non-renewal of registration,[49] abandonment,[50] lapse due to non-use,[51] and non-payment of the annual renewal fee,[52] can eliminate the IP’s value and hinder its realisation.

Additionally, failing to enforce rights against infringers during insolvency could substantially diminish its economic value for the debtor, licensees, and the public, as its value is intrinsically tied to the right to exclude others.[53]

1.4. Securitisation

It is possible to use IP to secure business funding.[54] However, there is hesitance to accept them as the primary security because of difficulty in IP valuation, fluctuations in the medium- and long-term values of IP and lack of understanding of the nature and importance of IP by the lending industry.[55]

The security interests serve as insurance in bankruptcy.[56] It gives the non-debtor high priority and protection in insolvency.[57] For example, the Nigerian Companies and Allied Matter Act expressly allows the creation of charges on IP.[58]

Where a debenture holder becomes entitled to realise their security, they can appoint a receiver who is empowered not only to sell assets that are subject to charges or security but also to accept or grant licenses with respect to IP.[59]

In Ghana, a secured creditor holding a charge over an insolvent company’s IP asset could apply for leave to enforce the security[60] and apply for an order to appoint a receiver as well.[61] The creditor of an insolvent licensor would be able to receive any royalty payments from the licensee.[62]

Treatment of IP License Agreements During Insolvency

Different jurisdictions may handle IP license agreements differently during insolvency. This section examines the practices in a few common law jurisdictions and specific provisions of Act 1015.

1.5. IP licensing

Freedom of contract is essential in maximising the potential value of IP through licensing.[63] The IP owners may grant the licensees exclusive or non-exclusive rights to use the IP.[64] If a party has ongoing obligations, that contract is considered executory.[65]

Unlike standard contracts, IP licensing agreements are governed by additional laws, including the intricacies of IP regulations.[66] Licensing allows innovative firms to retain ownership of the IP instead of selling it to third parties,[67] with licensors typically receiving royalties and fees from licensees.[68]

Licensing also enables those licensees to exploit the IP’s potential as assets in commerce.[69] However, licensing requirements vary across different categories. For example, while copyright contracts may be oral or inferred by conduct,[70] patent[71] and trademark[72] licenses must be in writing and filed with the Registrar-General of Ghana to be enforceable against third parties.[73] The legal intricacies of IP licensing in insolvency vary across jurisdictions.

1.6. Practice in other Jurisdictions

In some jurisdictions, insolvency laws have express provisions for IP licensors and licensees. For instance, the United States Bankruptcy Code grants the trustee the option to either “assume” or “reject” executory contracts.[74]

In the Code’s Chapter 7 proceedings involving liquidation, if an executory contract is not assumed or rejected within 60 days of the bankruptcy filing, it is deemed as rejected by the operation of law.[75] Where the trustee rejects an executory contract involving IP, the Code recognises that a licensee may elect to treat that rejection as a termination of the contract on its own terms or may retain its right under the contract.[76]

If the licensee retains its rights, the trustee is obliged to allow the licensee to exercise such rights, and the licensee shall pay all royalties due under the contract.[77] The licensee is also entitled to any IP held by the trustee in accordance with the contract or any supplementary agreement.[78] Unless the licensee rejects the contract, the trustee shall not interfere with the licensee’s right under the contract.[79]

Furthermore, the Canadian Bankruptcy and Insolvency Act and Companies’ Creditors Arrangement Act allow licensees to continue to use the IP for the remainder of the license term after an insolvent licensor’s IP is sold, provided the licensees perform their obligations under the license.[80] The cancellation of the contract by the liquidator does not affect these accrued rights.[81]

From a developing country perspective, the insolvency laws in India,[82] Nigeria,[83] and South Africa[84] do not expressly provide statutory safeguards for parties to IP licensing contracts. The following section focuses on Ghana.

1.7. Treatment of IP licensing agreements under Act 1015

Under Act 1015, persons who entered into contracts with the company before the commencement of winding up are not required to render services or perform their obligations unless the liquidator assures them the company’s assets are sufficient to pay for these services or compensate for the discharge of the obligations according to the terms of the contract.[85] While this provision primarily focuses on payments from the company’s account, it does not adequately address the broader issue of contract continuity during insolvency.

Although Act 1015 details the effect of insolvency on interests arising out of tenancy[86] and employment[87] agreements, it is silent on other types of contracts. Notably, it does not explicitly protect licensees when licensors become insolvent, unlike the laws in jurisdictions such as the United States and Canada.

In Ghana, a company’s property vests in liquidators during winding up unless the liquidators direct otherwise.[88] The liquidators are empowered to assume custody and control of the property and things in action of insolvent companies.[89]

As such, the liquidator may opt to discontinue or terminate the license, terminating all licensee’s rights. Licensees may be unable to obtain the IP elsewhere, causing them to discontinue their operations and leading to economic harm.[90]

Furthermore, Act 1015 inadequately addresses the disposal of IP rights in licenses. It is common practice for liquidators to transfer the licensee’s interests in the IP to a third party to maximise the value of a failed or failing licensee.[91] This can create challenges for licensors. If the debtor-licensee or liquidator assigns the IP license to a third party, the licensor’s business could be disrupted.[92]

If the licensee holds an exclusive license to supply essential manufacturing materials, assigning or selling the licensee’s interests to a third party could negatively affect the licensor’s business activities.

Such disposals may be permissible under Act 1015, as Section 97(h) allows liquidators to transfer or sell the insolvent company’s property or things in action. This provision implies that an insolvent licensee’s IP interests could be sold or transferred to third parties without recourse to licensors. Consequently, the interests of licensors are left vulnerable under Act 1015 when the licensees become insolvent.

Section 128 of Act 1015 permits liquidators to disclaim property that does not benefit creditors within one year after the commencement of the winding-up.[93] Additionally, persons with interests in property vested in the liquidator may request the liquidator to elect to disclaim such property.[94]

These disclaimers are intended to determine the rights, the company’s interests and liabilities in the disclaimed property.[95] Additionally, the rights and liabilities of other persons are unaffected except where necessary to release the company and its property from liability.[96]

However, Section 128 refers only to property—omitting things in action. This omission could be interpreted[97] as excluding all things in action, including IP, from the disclaimer provision.

Key Proposed Reform for IP and Insolvency

1.8. Legislative Amendments to Act 1015  

First, Act 1015 should explicitly recognise IP as essential business property. The Act should define movable property and include things in action and other intangible property. That definition would indirectly cover IP and avoid the inconsistent use of the terms property and things in action in the Act.

Alternatively, the definition of property in Act 1015 could be aligned with that of Act 992 to ensure internal coherence within the corporate governance framework. These terms must be reconciled with the term assets, which remains undefined in Act 1015.

Second, Act 1015 should provide clear guidance on protecting IP licensing contracts and related interests during insolvency, addressing contract continuity and assignability. Such approaches would enhance legal certainty and certainty of commercial transactions during insolvency.[98] Licensing parties will also know what to expect in the event of insolvency.[99]

1.9. Managing and Protecting IP Assets During Insolvency

Effective IP asset management during insolvency requires companies to identify and document their IP assets, maintain an IP portfolio, and regularly update the IP asset inventory.[100] They must register their IP licenses, as discussed in the introductory part of this article.

This would make it easier for them to be traced during insolvency. An IP audit would enable businesses to know the value of their IP assets.[101] Companies should make this IP inventory available to insolvency practitioners and other stakeholders.

Insolvency practitioners must develop expertise in dealing with IP assets to maximise the value of the insolvent company’s estate.[102] Standardised valuation methods should be applied in assessing IP assets in insolvency proceedings,[103] as neglecting intangible assets undermines accurate valuations.[104]

Lastly, liquidators and insolvency practitioners must ensure that IP protection does not lapse during insolvency.

Conclusions

The article argues that Act 1015 leaves significant gaps in the treatment of IP unresolved, risking its undervaluation or neglect during insolvency. The Act’s current provisions inadequately protect IP licensors and licensees, highlighting the need for legislative reform. Such reform should prioritise explicit protection of the interests of licensors and licensees in IP licensing agreements.

This is crucial in safeguarding innovation, competitiveness, and investor confidence. Given that the article discussed legal issues about the problem conceptually, it is proposed that future in-depth empirical investigations should explore whether and how IP assets have been managed in practice.

The author is currently a PDH Student at the Faculty of Law,Ludwing Maxmillan Univetrsity of Munich, Germany and a Research Fellow at the Max Planck Institute for innovation and Competition, Germany,

* B.Pharm (Ghana), LL.B (Ghana), LL.M (Munich), BL (Ghana). Author is currently a PhD Student at the Faculty of Law, Ludwig Maximilian University of Munich, Germany and a Research Fellow at the Max Planck Institute for Innovation and Competition, Germany.

[1] Alden F Abbott, ‘Intellectual Property Licensing and Antitrust Policy: A Comparative Perspective’ (2003) 34 Law & Pol’y Int’l Bus 801, 801.

[2] Bryan A Garner and Henry Campbell Black (eds), Black’s Law Dictionary (9th ed, West 2009) 881.

[3] See Sections 1 to 7 of Part II of the TRIPS: Agreement on Trade-Related Aspects of Intellectual Property Rights 1994 (Marrakesh Agreement Establishing the World Trade Organization, Annex 1C, 1869 UNTS 299,33 ILM 1197).

[4] Ted Hagelin, ‘A New Method to Value Intellectual Property’ (2002) 30 AIPLA Quarterly Journal 353, 354–355.

[5] Patent Act 2003 (Act 657) s 11.

[6] ibid 12(1).

[7] Trademarks Act 2004 as amended by Trademarks (Amendment) Act 2014 s 1.2(2)(a).

[8] Copyright Act 2005 (Act 690) s 1(1).

[9] ANE Amissah, ‘Patents and the Transfer of Technology’ (1979) XI RGL 40.

[10] Samuel O Manteaw, ‘Patents and Development in Ghana: Proposals for Change’ (2008) 24 U Ghana LJ 111, 120.

[11] Naina Khanna, ‘The Securitization of IP Assets: Issues and Opportunities’ (2018) 23 Journal of Intellectual Property Rights 94, 94–95.

[12] Ariel Glasner, ‘Making Something out of Nothing: The Trend towards Securitizing Intellectual Property Assets and the Legal Obstacles That Remain’ (2008) 3 J Legal Tech Risk Mgmt 27, 27.

[13] ibid 28.

[14] Jacques De Werra, ‘The Need to Harmonize Intellectual Property Licensing Law: A European Perspective’ in Jacques de Werra (ed), Research handbook on intellectual property licensing (Edward Elgar 2013) 450.

[15] Preamble of Corporate Insolvency and Restructuring Act, 2020 (Act 1015).

[16] ibid 169.

[17] Peter S Menell, ‘Bankruptcy Treatment of Intellectual Property Assets: An Economic Analysis’ (2007) 22 Berkeley Technology Law Journal 733, 737.

[18] ibid 736.

[19] ibid 735.

[20] ibid 751.

[21] John White, ‘Intellectual Property Rights as Primary Security’ (1998) 7 Int. Insolv. Rev. 193, 193.

[22] Jeffrey E Jarrett, ‘Intellectual Property Valuation and Accounting’ (2017) 05 Intellectual Property Rights: Open Access 4.

[23] Scott F Kieff and Troy A Paredes, ‘An Approach to Intellectual Property, Bankruptcy, and Corporate Control’ (2004) 82 Washington University Law Quarterly 1313, 1313.

[24] Corporate Insolvency and Restructuring Act, 2020 (Act 1015) s 169.

[25] The Bodies Corporate (Official Liquidations) Act, 1963 (Act 180) s 66.

[26] AJ Fanj Construction and Industrial Engineering Ltd v Ghacem Limited [2022] DLSC11437 11; The Republic v Edward Acquaye@Nana Abor Yamoah II [2008] DLSC6237 1.

[27] Garner and Black (n 2) 1110.

[28] Madina Shopping Mall Association v Rosehill Gh Ltd, E M Frimpong and Jimmy Nufu [2010]DLSC2514 7.

[29] The Insolvency Act 1986, s 436(1).

[30] United States Bankruptcy Code 11 U.S.C., s 541.

[31] ibid 365.

[32] Bankruptcy and Insolvency Act s 72.1 and 246.1.

[33] Companies and Allied Matter Act, 2004 s 222.

[34] Copyright Act, 2022 s 30(1); Constitution of the Federal Republic of Nigeria 1999.

[35] Companies Act, 2019 (Act 992) s 383.

[36] Hagelin (n 4) 356.

[37] WT Major, ‘The Assignment of Things in Action’ in WT Major, Basic English Law (Macmillan Education UK 1990) 239.

[38] ibid 238.

[39] [1987-88] 2 GLR 666, 667.

[40] Howard W Elphinstone, ‘What Is a Chose in Action’ (1893) 9 L.Q.R 311, 311.

[41] Major (n 37) 238.

[42] Corporate Insolvency and Restructuring Act, 2020 (Act 1015) s 92(2).

[43] ibid 97(h).

[44] ibid 87(3).

[45] Kieff and Paredes (n 23) 1313.

[46] Menell (n 17) 813.

[47] Insolvency and Bankruptcy Code, 2016 s 36(3)(d).

[48] Kieff and Paredes (n 23) 1315–1316.

[49] Trademarks Act 2004 as amended by Trademarks (Amendment) Act 2014 s 11.

[50] ibid 16(5).

[51] ibid 14(1).

[52] Patent Act s 12(4).

[53] Kieff and Paredes (n 23) 1324; Jeffrey Matsuura, ‘An Overview of Intellectual Property and Intangible Asset Valuation Models’ (2004) 14 Research Management Review 33, 38.

[54] André Millard, Edison and the Business of Innovation (Softshell Books edn, Johns Hopkins Univ Pr 1993) 43–46.

[55] White (n 21) 193.

[56] Menell (n 17) 737.

[57] Imran A Khaliq, ‘The Effect of Bankruptcy on Intellectual Property License Agreements’ (2003) 8 Intell Prop L Bull 12, 15.

[58] Companies and Allied Matter Act, 2004 s 222(2)(i).

[59] ibid 233(3).

[60] Corporate Insolvency and Restructuring Act, 2020 (Act 1015) s 37.

[61] ibid 36(1)(b)(ii).

[62] Paramita Prananingtyas, ‘Development and Challenges of Using Trademark Rights as Intangible Assets in Bankruptcy Assets in Indonesia’ (2022) 17 Pandecta Research Law Journal 287, 292.

[63] Menell (n 17) 735.

[64] Anthony Duggan and Norman Siebrasse, ‘The Protection of Intellectual Property Licenses in Insolvency: Lessons from the Nortel Case’ (2015) 4 Penn St JL & Int’l Aff 489, 510.

[65] ibid 495; Khaliq (n 57) 13.

[66] De Werra (n 14) 461; Andrea Tosato, ‘Andrea Tosato, Intellectual Property License Contracts: Reflections on a Prospective UNCITRAL Project’ (2018) 86 U. Cin. L. Rev. 1251, 1258.

[67] William W Fisher III and Felix Oberholzer-Gee, ‘Strategic Management of Intellectual Property: An Integrated Approach’ (2013) 55 California Management Review 157, 165.

[68] Khaliq (n 57) 13.

[69] Menell (n 17) 737.

[70] Copyright Act s 9(5).

[71] Patent Act s 29(4).

[72] Trademarks Act 2004 as amended by Trademarks (Amendment) Act 2014 s 16(1).

[73] Patent Act s 29(5); Trademarks Act 2004 as amended by Trademarks (Amendment) Act 2014 s 16(2).

[74] Bankruptcy Reform Act of 1978.

[75] Menell (n 17) 755.

[76] Bankruptcy Reform Act of 1978 para n(1).

[77] ibid n(2).

[78] ibid n(3).

[79] ibid n(4).

[80] Bankruptcy and Insolvency Act s 246.1(1); Companies’ Creditors Arrangement Act 36.

[81] Bankruptcy and Insolvency Act s 246.1(2); Companies’ Creditors Arrangement Act s 32.

[82] Insolvency and Bankruptcy Code, 2016.

[83] Companies and Allied Matter Act, 2004 and Companies Winding-up Rules 2001.

[84] Insolvency Act 24 of 1936.

[85] Corporate Insolvency and Restructuring Act, 2020 (Act 1015) s 133(3).

[86] ibid 61(4)-(7).

[87] ibid 13.

[88] ibid 92(1).

[89] ibid 92(2).

[90] Menell (n 17) 769.

[91] ibid 736.

[92] ibid 784; Khaliq (n 57) 14.

[93] Corporate Insolvency and Restructuring Act, 2020 (Act 1015) s 128(1).

[94] ibid 128(1) and (2).

[95] ibid 128(4).

[96] ibid 128(5).

[97] Expressio unius exclusio alterius as explained by the Court of Appeal in CFAO v ZACCA [1972] DLSC2211 is an aid to interpretation that suggests that when a statute expressly mentions one thing, it is presumed that it excludes what is not mentioned.

[98] Tosato (n 66) 1262.

[99] Menell (n 17) 735.

[100] White (n 21) 195.

[101] ibid 201.

[102] Duggan and Siebrasse (n 64) 495.

[103] White (n 21) 201.

[104] Matsuura (n 53) 33.

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