The Anti-Deprivation Rule in Practice – Examples from comparative law and legal history

This thesis is a comparative study of insolvency transactions avoidance laws in Canada,
England and the United States. This work mainly concerns the anti-deprivation rule which,
although not explicit in statute, is an implicit prohibition which emanates from the long history of the development of common law bankruptcy and insolvency statutes. The anti-deprivation rule has been interpreted differently by both the United Kingdom Supreme Court and the Supreme Court of Canada. This thesis attempts to explain this discrepancy while also attempting a better understanding of the anti-deprivation rule itself alongside principles of insolvency law more generally. Inspired by the Legal Traditions Approach of H. Patrick Glenn, it is proposed here that some degree of legal historical analysis is essential to one’s understanding of both the origins and modern applications of the anti-deprivation rule and how such has diverged across national boundaries. Alongside legal development, this thesis also relies upon case law in all three studied jurisdictions to uncover not only biases in anti-deprivation case law but to understand similar principles which exist in American law. While the anti-deprivation rule itself does not exist in theUnited States, it is postulated here that similar principles, which emanate from the Statute ofElizabeth 1571, also manifest themselves within the Bankruptcy Code. Alongside the anti-deprivation rule, the thesis will also examine the related pari passu rule and statutory provisionsacross all three jurisdictions to attempt a greater understanding of both the former and transactions avoidance in insolvency more generally.