The Role of the Court in Debt Restructuring

By Jennifer Payne (Oxford University)

This paper examines the intervention of the law, and the role of the court, in debt restructuring, both in terms of imposing constraints on creditors and in seeking to ameliorate the potential abuses that can arise from such constraints. Three potential forms of abuse are examined: the imposition of a restructuring on dissenting creditors, which introduces the potential for wealth transfers between creditors; the imposition of a moratorium while a restructuring is negotiated, which might lead to misuse of the process by managers wishing to prop up companies that are not viable or may allow the managers of a viable business to “shake off” liabilities that the business is capable of servicing; and the imposition of debtor-in-possession arrangements, which raise the potential for new creditors to be preferred at the expense of existing creditors.  It is argued that the court’s role in protecting creditors from these three forms of potential abuse is vital, although the nature of that role differs according to the form of abuse. Recent debt restructuring reform proposals in both the UK and the EU, which adopt quite different approaches to the role of the court in this process, are examined in the light of this discussion.

The full paper is available here.

Contracting for a European Insolvency Regime

By Horst Eidenmueller (Oxford University)

The European Commission has proposed a directive on “preventive restructuring frameworks” for financially distressed firms. If adopted, the directive would force the Member States of the European Union (“EU”) to design restructuring proceedings that conform to the directive’s stipulations.

In a recent paper, I demonstrate that the proposal is flawed because it creates a refuge for failing firms that should be liquidated, because it rules out going-concern sales for viable firms, and because it is, in essence, a twisted and truncated insolvency proceeding. I also demonstrate that the Commission’s harmonization plan is misguided. If implemented, financing costs for firms would rise. The plan would cast in stone an inefficient restructuring framework on a European-wide scale, preventing member states from experimenting with more efficient procedures.

I suggest an alternative regulatory proposal: European firms should have the option to choose a “European Insolvency Regime” in their charter. This regime should be embodied in a European regulation, guaranteeing legal certainty to stakeholders. This proposal would preserve horizontal regulatory competition between the Member States for the best “insolvency product,” and it would introduce vertical regulatory competition between the member states and the EU in the field of insolvency law. Hence, my proposal would strengthen market testing of European insolvency regimes instead of eliminating creative discovery processes through a flawed harmonized framework.

Key design principles of the proposed optional “European Insolvency Regime” are the following: (i) it should be open for restructurings, going concern sales, and liquidations, and firms should be channelled into the appropriate process based on the opinion of a court-appointed supervisor; (ii) it should be a fully specified (complete) and fully collective insolvency proceeding; and (iii) the proceeding should be conducted in DIP form with the mandatory appointment of a supervisor who performs important insolvency-related functions.

The full paper is available here.