Does debtor protection really protect debtors? Evidence from the small business credit market

This paper analyzes how different levels of debtor protection across US states affect small firms’ access to credit, as well as the price and non-price terms of their loans. We use an individual-specific measure of debtor protection that has its maximum value when the borrower’s home equity is lower than the state homestead exemption (the debtor’s home equity is fully protected), and is decreasing in the difference between the home equity and the homestead exemption (the amount that the creditor can seize). We find that unlimited liability small businesses have lower access to credit in states with more debtor-friendly bankruptcy laws. In addition, these businesses face tighter loan terms - they are more likely to pledge business collateral, have shorter maturities, and borrow smaller amounts. For limited liability small businesses, we also find a reduction in credit availability, but of smaller magnitude, together with an increase in the loan rate.     

The Chinese Approach Toward Cross‐Border Bankruptcy Proceedings: One Progressive Step Ahead

The birth of the law on enterprise bankruptcy of the People's Republic of China in 2006 was highly acclaimed. It was generally regarded as a modernized comprehensive legislative work at home and abroad. The “territorialism” approach adopted therein respecting foreign bankruptcy proceedings, however, has received floods of criticism ever since. It has left a great legal vacuum for the protection of foreign bankrupt debtor's assets in China. Foreign investors, however, may see dawn and have their confidence restored after the recent decision of the Supreme People's Court in the well‐known case of Thumb Environmental Technology Group v Sino‐Environment Technology Group, which was made on 11 June 2014. From this case on, with some limitations, the legitimate powers of foreign bankruptcy administrators might normally be ensured once foreign bankruptcy proceedings are initiated in the place of registration or place of principal business of the foreign debtor, whereby foreign administrators will be able to take effective measures to investigate, protect and dispose of the bankrupt's assets located within the Chinese territory.     

Debt and managerial rents in a real-options model of the firm

We present a theory of capital investment and debt and equity financing in a real-options model of a public corporation. The theory assumes that managers maximize the present value of their future compensation (managerial rents), subject to constraints imposed by outside shareholders’ property rights to the firm's assets. Absent bankruptcy costs, managers follow an optimal debt policy that generates efficient investment and disinvestment. We show how bankruptcy costs can distort both investment and disinvestment. We also show how managers’ personal wealth constraints can lead to delayed investment and increased reliance on debt financing. Changes in cash flow can cause changes in investment by tightening or loosening the wealth constraints. Firms with weaker investor protection adopt higher debt levels.     

Stiffing the creditor: Asset verifiability and bankruptcy

Evidence suggests that asset pledgeability, debt complexity, and control rights of dispersed debt influence financial distress resolution. We model how courts’ imperfect verifiability of assets and valuable control of misaligned creditors shape firms’ debt structure and create coordination problems that determine distress outcomes and financing. A key result is that an increase in verifiability allows financially constrained firms to fund projects by pledging more assets to misaligned creditors, making contract renegotiation in distress times more difficult and increasing the probability of bankruptcy. Since equity receives less in the event of distress, constrained firms choose riskier projects with higher returns. Consistent with our model, bankruptcy filings increase after the U.S. Supreme Court decision imposing a “market test” to assess the value of stockholders’ interest in debtor proposals. The effect is stronger for firms with low asset verifiability. These firms also experienced an increase in recovery rates, debt capacity, and risk-taking. Our findings suggest that reforms improving the verifiability of assets substantially impact credit access. However, our results also point out that improving asset verifiability may be insufficient for constrained firms with aligned creditors. Therefore, complementary reforms that facilitate firms’ access to creditors from different market segments may be necessary.     

Evidence on the insurance effect of bankruptcy exemptions

Defaulting on one’s debts when experiencing an adverse event can help insure households against unexpected income risks. But the effect of allowing default on debt levels is ambiguous, not least because lenders may restrict access to credit. Hence the optimal punishment for bankruptcy is unclear. The US states allows householders to keep a variety of assets when filing for bankruptcy – the ‘bankruptcy exemptions’ – and these exemptions change substantially between states and over time. By exploiting these differences this study shows that raising the exemptions (i) marginally decreases the level of unsecured debt that household’s hold; (ii) makes consumption smoother. Thus, despite the effect on debt levels, the generous provisions to debtors in arrears may be helping US households to insure themselves against income risk.     

Financial Distress and Bank Restructuring of Small to Medium Size UK Companies

We use a unique data set to study how U.K. banks deal with financially distressed small and medium-sized companies under a contractualist bankruptcy system. Unlike in the U.S., these procedures limit the discretion of courts to strict enforcement of debt contracts, without any dilution of creditors claims. We show that lenders and borrowers select a debt structure that avoids some of the market failures often attributed to a contractualist system. Collateral and liquidation rights are highly concentrated in the hands of the main bank, giving it a dominant position in restructuring or liquidating a defaulting firm. There is little litigation, and no evidence of co-ordination failures or creditors runs. However, there is some evidence that the banks dominance makes it lazy in monitoring, relying heavily on the value of its collateral in timing the bankruptcy decision.     

The impact of bank ownership concentration on impaired loans and capital adequacy

This paper examines the impact of bank ownership concentration on two indicators of bank riskiness, namely banks’ non-performing loans and capital adequacy. Using balance sheet information for around 500 commercial banks from more than 50 countries averaged over 2005–2007, we find that concentrated ownership (proxied by different levels of shareholding) significantly reduces a bank’s non-performing loans ratio, conditional on supervisory control and shareholders protection rights. Furthermore, ownership concentration affects the capital adequacy ratio positively conditional on shareholder protection. At low levels of shareholder protection rights and supervisory control, ownership concentration reduces bank riskiness.     

The incentive to give incentives: On the relative seniority of debt claims and managerial compensation

We show that the relative seniority of debt and managerial compensation has important implications for the design of remuneration contracts. Whereas the traditional literature assumes that debt is senior to remuneration, there are in reality many cases in which remuneration contracts are de facto senior to debt claims in financially distressed firms and in workouts. We theoretically show that risky debt changes the incentive to provide the manager with performance-related incentives (a “contract substitution” effect). In other words, the relative degree of seniority of managers’ claims and creditors’ claims in case a bankruptcy procedure starts is crucial to determine the optimal incentive contract ex-ante. If managerial compensation is more senior than debt, higher leverage leads to lower power incentive schemes (lower bonuses and option grants) and a higher base salary. In contrast, when compensation is junior, we expect more emphasis on pay-for-performance incentives in highly-levered firms.     

Reorganization in bankruptcy and the issue of strategic risk

The decision by creditors to force the firm into bankruptcy, where bankruptcy includes reorganization, is shown to involve the valuation of a lottery over (cooperative) games rather than a lottery over specific monetary outcomes. In the absence of assumptions about strategic (negotiating) risk, the value of creditor claims is seen to be ambiguous. This paper extends Van Horne's model of the optimal initiation of bankruptcy proceedings to include the reorganization option and strategic risk. A modified decision rule is obtained to determine the optimal solution.     

Bankruptcy law and corporate investment decisions

Major European countries have recently adopted bankruptcy codes that strengthen entrepreneurs’ power to renegotiate outstanding liabilities. Renegotiation in bankruptcy allows lenders to increase recovery rates, however it also weakens the contract’s ability to solve the moral hazard problem embedded in the production project. Hinging on this trade-off, I show in which circumstances a soft bankruptcy law that resembles Chapter 11 in the balance of lenders’ and entrepreneur’s rights encourages the choice of investments that privilege the achievement of long-term results. However, I also show that, in contrast to the common wisdom, soft bankruptcy can lead to the choice of investments that are biased towards the achievement of short-term outcomes.     

UNIVERSITY OF ROCHESTER ROUNDTABLE ON Bankruptcy vs. Bailouts: The Case of General Motors and the U.S. Auto Industry

In an event staged at Rochester's Geva Theatre in the midst of the global financial crisis in 2009, Tom Jackson, one of the world's two most highly regarded bankruptcy scholars (the other is Doug Baird) as well as a former President of the University of Rochester, begins by explaining why the U.S. Chapter 11 reorganization process is well suited to resolving the problem of excess capacity that has long plagued the U.S. auto industry. As Jackson has noted elsewhere, thanks to both academic research and the efforts of legal and corporate practitioners to implement the findings of this research, The current Chapter 11 process is a dramatic improvement over the world of 1985. In those days, our system put the bankruptcy judges— people who generally do not have a great deal of financial sophistication—in the impossible position of deciding among the conflicting claims of parties whose incentives were to provide biased information. The great thing about the auction process that is now routinely used by the ABI—and which wasn't being used anywhere in the bankruptcy process 20 years ago—is that we're likely to get more reliable information from people who are putting up their own money…[and so] backing their projections of future performance and value with cash. This has the great benefit of taking the judges out of a role for which they have neither the proper training or experience—or the right incentives… [As a result of recent reforms,] what we have today is a much more streamlined process. Sale mechanisms are more likely to be used, exclusivity periods are less likely to be extended, and it has begun to look a lot like the auction or M&A model that some of us proposed years ago. This relatively new reliance on an M&A‐type auction process is reassuring because, as Cliff Smith points out, One of the biggest challenges in bankruptcy is determining the value of the firm, or the size of the pie that can end up being divided among the creditors. And this means that before you start divvying up the firm's assets, it's critically important to get reliable answers to questions like: How valuable is this business under the current management? And how valuable could it be if we allowed the ownership to change? Judges don't have a comparative advantage in answering these questions because they simply don't have the specific knowledge to make this kind of determination. Using the auction system in a market setting is likely to generate much more reliable answers. Besides preserving value for creditors, a better informed and more efficient reorganization process can also have the critically important effect of removing excess capacity in industries that are weighed down by it. And as Smith goes on to say, Financially troubled companies that will not be viable under any management team and are therefore worth more dead than alive are clearly candidates for Chapter 7, and the job of the bankruptcy courts is to get them there as expeditiously as possible. Liquidate the business and free those assets to move to higher‐valued uses… Take the case of the airline industry. Although keeping extra carriers in business through prolonged stays in Chapter 11 may help keep airfares down, these artificially low fares are also likely to discourage even profitable competitors from investing in the future. And this ends up working against the long‐run interest of the industry and the general public. In sum, bankruptcy has at least two potentially important roles to play in a well‐functioning economy. First is distinguishing companies that should survive and remain intact from those that should be pulled apart. In cases of chronic overcapacity in which companies are clearly worth more dead than alive, the firm's assets should be sold, either piecemeal or in their entirety, to the highest bidders. But for all economically viable businesses, there are two general outcomes: In cases where a competent management team is the victim of external circumstance—and perhaps the wrong capital structure—the likely outcome is an LBO‐type transaction in which outsiders provide new funding for the current team. But in those cases where the current management is viewed as part of the problem, the system is designed to shift control to new owners and management—and as quickly as possible. Such a process can be expected to contribute to long‐run economic growth by helping ensure that industries end up with the right amount of capacity, neither too much nor too little.     

The Canadian Keiretsu

This article describes the Canadian keiretsu , in which a main Chartered Bank dominates an interlocking group of corporate clients, investment dealers, trust companies, and professional advisors. Such a network facilitates information-sharing and monitoring among group members, while also reducing the agency costs of banker misbehavior. Most major Canadian firms are members of a keiretsu , and stock ownership of Canadian corporations is far more concentrated than ownership of U.S. companies.
Given their many similarities of history, law, and geography, Canada and the United States should have ended up with similar corporate ownership and governance structures. But they did not, and the difference was Canada's less restrictive banking and bankruptcy laws, which in turn can be traced to Canada's distinctly non-populist historical experience.
The Canadian keiretsu arose primarily for two reasons: (1) the larger concentration of commercial banking (the six largest Canadian banks today account for 98% of the industry's assets) allowed by Canadian law; and (2) the greater powers of Canadian secured lenders in the event of default. Unlike a U.S. Chapter 11 filing, in a Canadian bankruptcy the lender's right to assume control of the assets was not stayed until quite recently. And, even with the recent change in Canadian bankruptcy law, Canadian secured lenders have much stronger protection of their claims in bankruptcy than their U.S. counterparts in Chapter 11.     

区块链时代破产法的机遇与挑战

区块链与破产法在维系市场主体信用方面相得益彰,区块链能够提升破产程序运转效率,实现破产程序信息披露透明,维护破产结果的公平公正。区块链资产的价值具有较大波动性,判定破产界限存在反复。区块链资产包括数据资产和数据信息两部分,识别破产财产需要区分对待。数字货币承载着价值资产和货币流通的双重角色,破产财产的定性应当审慎选择。     

Auctions in bankruptcy

This paper examines whether mandatory auctions promote the efficient restructuring of distressed firms relative to a reorganization-based bankruptcy system such as Chapter 11. Under a mandatory auction system, aggressive bidding by a coalition of incumbent management and pre-bankruptcy creditors may deter outside bidders, may result in the coalition paying more than its valuation to acquire the firm, and may result in assets remaining in a lower value use. In a reorganization-based bankruptcy system, management's voluntary choice to seek an auction conveys information about the coalition's valuation, which facilitates competition. Our model shows that a reorganization-based bankruptcy system that encourages, but does not mandate auctions, can actually increase the likelihood that an outside bidder enters and the assets of the bankrupt firm are redeployed.     

The determinants of bank loan recovery rates

Using Moody’s Ultimate Recovery Database, we estimate a model for bank loan recoveries using variables reflecting loan and borrower characteristics, industry and macroeconomic conditions, and several recovery process variables. We find that loan characteristics are more significant determinants of recovery rates than are borrower characteristics prior to default. Industry and macroeconomic conditions are relevant, as are prepackaged bankruptcy arrangements. We examine whether a commonly used proxy for recovery rates, the 30-day post-default trading price of the loan, represents an efficient estimate of actual recoveries and find that such a proxy is biased and inefficient.     

Who gets credit after bankruptcy and why? An information channel

Conventional wisdom holds that individuals find it difficult to obtain new credit post-bankruptcy. Using credit bureau data, we test this hypothesis and show that more than 90% of bankrupt individuals receive credit shortly after filing. Individuals with good credit history prior to filing have reduced credit availability after bankruptcy while those with ex-ante low credit quality receive more credit. We show that credit supplied to low quality individuals is severely curtailed during the financial crisis. We also find that the default probability on new debt increases after bankruptcy, especially among individuals with high ex-ante credit score. These findings are consistent with an information channel, in which bankruptcy reveals new information about a borrower’s credit quality.     

Conflicts of Interest and Market Illiquidity in Bankruptcy Auctions: Theory and Tests

I develop and estimate a model of cash auction bankruptcy using data on 205 Swedish firms. The results challenge arguments that cash auctions, as compared to reorganizations, are immune to conflicts of interest between claimholders but lead to inefficient liquidations. I show that a sale of the assets back to incumbent management is a common bankruptcy outcome. Sale-backs are more likely when they favor the bank at the expense of other creditors. On the other hand, inefficient liquidations are frequently avoided through sale-backs when markets are illiquid, that is, when industry indebtedness is high and the firm has few nonspecific assets.     

信托公司参与企业资产证券化中的双SPV模式探究

资管计划参与下企业ABS虽可拓展企业融资渠道,但立法效力等级低及监管的严格化倾向使其无法实现完全破产隔离并极大限制基础资产范围。海印模式下信托公司参与企业ABS,利用双SPV结构解决了破产隔离以及基础资产问题。而该双SPV模式为迫于满足监管要求不得已的产物并非金融创新,建议逐步确定企业ABS市场受托管理人主体以解决现阶段资管计划多头监管现象;在双SPV模式监管中赋予信托公司更多基础资产以及第二层SPV管理人的审查、甄选责任。     

Can Language Predict Bankruptcy? The Explanatory Power of Tone in 10‐K Filings

We examine whether the language used in 10‐K filings reflects a firm's risk of bankruptcy. Our sample contains 424 bankrupt U.S. companies in the period 1994–2015 and we use propensity score matching to find healthy matches. Based on a logit model of failing and vital firms, our findings indicate that firms at risk of bankruptcy use significantly more negative words in their 10‐K filings than comparable vital companies. This relationship holds up until three years prior to the actual bankruptcy filing. With our investigation, we confirm the results from previous accounting and finance research. 10‐K filings contain valuable information beyond the reported financials. Additionally, we show that 10‐Ks filed in the year of a firm's collapse contain an increased number of litigious words relative to healthy businesses. This indicates that the management of failing firms is already dealing with legal issues when reporting financials prior to bankruptcy. Our results suggest that analysts ought to include the presentation of financials in their assessment of bankruptcy risk as it contains explanatory and predictive power beyond the financial ratios.     

A Note on the Determinants of the Outcomes of Bankruptcy Petitions: Evidence From Korea

This study provides evidence on the determinants of the outcomes of bankruptcy petitions using Korean firms for the period from 1977 to 1994. We hypothesize that a firm with more free assets, less liquid assets, longer existing period, larger size, lower operating risk, and more goodwill would have higher survival prospects from the bankruptcy petition. The results from logit estimation confirm this hypothesis. The free assets, existing period, firm size, and goodwill have positive influence on the probability of reorganization, while the liquid assets, and operating risk are negatively related to the probability of reorganization. Among these variables, the free assets percentage is the most significant at the one percent level in determining the outcomes of bankruptcy petitions. This reveals that a bankrupt firm with more free assets tends to be reorganized because it would be easy to obtain additional financing needed for the successful reorganization. The liquid assets and existing period are also significant at the five percent level. We conclude that a firm with more free assets, less liquid assets, and longer existing period would have higher survival prospects in Korea.