ABSTRACT
The following chapter will introduce a new way of considering stakeholders in a collective procedure (insolvency or restructuring) that seeks to internalise the ‘values network’ by considering the vulnerability and resilience of the various stakeholders insofar is it affects their power within such procedures. It will reach beyond entities possessing pre-contractual entitlements to provide a perspective on the fair treatment of a broader array of stakeholders, embracing both a contractarian and communitarian style of vision while advancing a combination of the two towards a more measurable test of fairness that can be applied to create bespoke priorities for the dramatis personae of stakeholders in a particular collective procedure. The end result builds upon the early conceptualisation of stakeholder theory and recognises how it has been used within theoretical discussions about insolvency and restructuring (intentionally or otherwise) in the works of Jackson, Baird, Dworkin, Korobkin, Warren, Westbrook and others. It then advances and builds on these approaches by applying Martha Fineman’s Vulnerability Theory to create a new framework within which fairness toward a variety of stakeholders can be tested and achieved in treatment, priorities, and distribution from within collective processes.
Gant, Jennifer, Vulnerability Theory in Insolvency Law (September 15, 2023).
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