engleski

Insolvency Set Off – What the EU Can Learn from the US

Set-off against insolvent party, as a discharge of reciprocal obligations in insolvency proceedings, is well grounded in both EU and USA legal systems. Although the concept of set- off against insolvent party in the EU has some similarities with insolvency set-off in the USA, still it has been differently treated. As Professor Wood said: „Set-off is the acid test: there is not enough to go round and so the law has to decide the winner and the loser.“ (Wood, 2007). E.g. in most EU countries, set-off is prohibited against insolvent party in order to augmenting the debtor´s estate. On the other hand, in the USA set-off is compulsory within insolvency law in order to favoring payment on creditors. Therefore, the main aim of this paper is to give a comparative analysis on set- off within insolvency in EU and USA laws. Author identifies various legal uncertainties in both legal systems on set-off within insolvency law and examines whether it is necessary to relax EU or USA rules on set-off in insolvency and how to overcome detected legal issues.

Bankruptcy set-off ; Insolvency set-off ; Recast regulation

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