On the meaning of bankruptcy: ‘Old–new’ lexicon in corporate insolvency law in the Commonwealth Caribbean

Abstract

Several jurisdictions in the Commonwealth Caribbean have undertaken reform and modernisation of their insolvency legislation. The dominant model for the new enactments has been Canada's federal statute, the Bankruptcy and Insolvency Act, RSC 1985, which has already been transplanted into six jurisdictions of the region. The transplantation has introduced lexicon which, while part of the vocabulary of the old statutes for personal insolvency, has, traditionally, been unfamiliar to the region's corporate insolvency law, hence the phrase, ‘“old–new” lexicon’, in the title. This article examines the meanings of some of this lexicon, particularly ‘bankruptcy’ and cognate terms, including ‘acts of bankruptcy’. The examination extends to the term ‘receiving order’, operationally related to bankruptcy. Legal interpretation of the terms is enriched in the discussion by insights from linguistics. While showing that the importation of these terms into the region's corporate insolvency law is semantically problematic, the article elucidates the signification of the terms. It points out that some of the ‘old–new’ terms may tend to reduce the efficacy in the contemplated lay administration of the statutes. It also warns that the ‘old–new’ lexicon threatens to undermine key goals of the reform exercise, suggesting a need for deeper scrutiny in the transplantation process.