HLGC Research Seminar - Bankruptcy without Borders

HLGC are delighted to be joined by Dr Fleur Stolker (Herschel Smith Fellow, Emmanuel College Cambridge), who will be speaking to us on “Bankruptcy without Borders”.

Abstract

As the 40th anniversary of the English Insolvency Act 1986 approaches, this paper turns to the much earlier origins of English bankruptcy law, beginning with the first statute enacted in 1543. Traditionally, scholars have treated the introduction and development of bankruptcy law in England as purely domestic. This article argues otherwise: from its earliest introduction, English bankruptcy law was transnational and served the commercial interests of both domestic and international creditors. Far from being confined within national borders, it shaped commercial behaviour and investment decisions across jurisdictions and formed part of a broader competitive programme that included taxation, import duties and other trade measures intended to strengthen England’s position in international commerce.

The parliamentary history of the 1543 statute has been lost, and its legacy remains obscured by myth. Through a close examination of the first four bankruptcy statutes (1543, 1571, 1603, and 1624), the study reconstructs their development using continental archival sources and contextual material often overlooked in legal scholarship. It traces the influence of commercial and legal practices in the Low Countries and highlights the role of the Merchant Adventurers in shaping English legislation. The paper also examines the treatment of foreign merchants and the Court of Chancery’s equitable jurisdiction in cases involving overseas traders. These practices, it argues, contributed to the formation of England’s distinctive pro-creditor legal culture. By situating these statutes within the broader economic and political landscape of early modern Europe, the paper offers new insights into the foundations of English insolvency law and a richer historical understanding of the development of bankruptcy and financial regulation.