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21 Int'l Insolvency Rev. 1 (2012)

handle is hein.journals/intvcy21 and id is 1 raw text is: 








      In re Lehman Brothers International

      (Europe): Positivism or the Rigour

                            of Pedantry?


                            Constantine N. fana*

           Centre for Insolveng Law and Polig, Kingston Universio, London 1T2 7LB, UK


                                   Abstract

This paper examines the decisions of the Companies Court and Court of Appeal in the
case of Lehman Brothers Ihternational (Europe) (in administration). It shows how
the judges' undue focus on the literal meaning of the language used in Part 26 of the
Companies Act 2006 had unfortunate consequences on the process of restructuring the
company and contradicted the intention of the legislature. It therefore proposes that it
may sometimes be important to revert to the erstwhile golden rule whereby judges may
depart from the 'plain meaning' of the words used in a statute to avoid an absurd or unfair
result. This may have prevented the judges from obserMng that a scheme under Part 26
can vary or extinguish a creditor's rights qua creditor, but cannot vary or extinguish prop-
erty rights; although debt is a form ofproperty. Copyright C 2011 John Wiley & Sons, Ltd.


                               I. Introduction
Legal positivists generally believe that legal rules provide reasonably determinate
guidance to judges who must give effect to what is expressed in the legislation (or
precedent) or make logical deductions. Succinctly, the guiding principle is that
rules that have not been deliberately laid down or 'posited' (ius positivum) by due
authority are not legal rules.1 The debate between this jurisprudential approach
and similar and opposite approaches has been entertained in the span of centuries
and may be prolonged for a dozen of centuries ahead. This is because there is some
truth in the fact that a law cannot legitimately direct conduct if it was not created
in accordance with established procedures.2 However, it is also true that the inter-
pretation of such a law is necessarily influenced by the judge's moral leaning.3 It is

*L-mail: ntsanyu@hotmail.com; c.ntsanyu-nana@ 2. See Shapiro, S. (2001), 'On Hart's way out' in Coleman,
kingston.ac.uk                           J. (ed) Had's Poststript. Essays on the Poststript to the Concept of
                                         Law (Oxford: Oxford University Press), at pp. 177-180.
1. See MacCormick, N. (2008) H.L.A. Hart 2nd Edition,  3. Dworkin, R. (2006), 7ustice in Robes (Cambridge,
at pp 194-195.                           Mass: Harvard University Press) at p. 225.
Copyright C 2011 John Wiley & Sons, Ltd.              Int. Insole. Rev., Vol. 21: 1-16 (2012)
                                     Published online 11 October 2011 in Wiley Online Library
                                               (wileyonlinelibrary.com DOI: 10.1002/iir. 199

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