| Abstract: | This article surveys ‘creditor‐friendly’ and ‘enterprise‐friendly’ bankruptcy regimes with a focus on the methodology underlying the filter test in distress, as reflected both in its academic treatment and in legal practice. I find that the test exhibits pro‐liquidation bias in designating liquidation of a firm with recovery potential as the Type II error, and in underplaying the benefits of a possible turnaround. Further influences militating against continuation include the power conferred on creditors through the balance sheet criterion and the undervaluation of intangible assets. I make the case for reversing such biases to establish a presumption in favour of continuation. |
