Part II United Kingdom, 11 The Scope and Application of the Anti-Deprivation Rule

Subject(s):

Bank resolution and insolvency — Regulation of banks — Derivatives — Regulated activities

This chapter begins by explaining why anti-deprivation rules are important. These anti-deprivation rules are designed to prevent parties from contracting out of the insolvency legislation. In particular, an insolvent cannot agree to a depletion or distribution of its property other than in accordance with the statutory insolvency distribution scheme. The chapter describes the Lehman context as it relates to the anti-deprivation rule, the relevant UK rules (all non-statutory),the basis of the UK Supreme Court’s findings in the Lehman litigation, and the various questions which remain difficult—sometimes exceedingly so—yet which may well need to be resolved should the issues reappear in future litigation.