The choice between informal and formal restructuring: The case of French banks facing distressed SMEs

This empirical paper investigates the paths leading to the resolution of financial distress for a sample of small and medium-sized French firms in default, focusing in particular on their decisions between bankruptcy and informal (out-of-court) renegotiations. The procedure is depicted as a sequential game in which stakeholders first decide whether to engage in an informal renegotiation. Second, conditional on opting for renegotiation, the debtor and its creditors may succeed or fail in reaching an agreement to restructure the firm’s capital structure. We test different hypotheses that capture (i) coordination and bargaining power issues, (ii) informational problems, (iii) firm characteristics, and (iv) loan characteristics. The empirical implementation is based on sequential LOGIT regressions. First, we find that the likelihood of informal renegotiations increases with loan size and the proportion of long-term debt. These two results support the argument that size matters when deciding whether to opt for informal renegotiation. Second, the probability of a successful renegotiation decreases when (i) the bank in charge of handling the process is the debtor’s “main” creditor and when (ii) the firm is badly rated and its management is considered faulty. Third, the estimations show that collateral plays a significant role in the first stage of the renegotiation process. However, it does not impact the likelihood of success in reaching a renegotiated agreement. Finally, some banks are clearly better than others at leading successful renegotiation processes.     

Firms’ performance under different bankruptcy systems: a Europe–USA empirical analysis

This study empirically analyses the effect that the bankruptcy law has on firms’ performance based on its financial situation. To do this, we considered the different types of efficiency and their influence on firms’ value. The study was carried out for Germany, Spain, the United States, France and the United Kingdom. We applied System‐GMM estimation to dynamic panel data. The main results show that under creditor‐oriented systems, there is a decrease in the value of both financially distressed firms and those filing for bankruptcy.     

REORGANIZATION AND FINANCIAL DISTRESS: AN EMPIRICAL INVESTIGATION

Prior studies on financial distress focus on the restructuring of one aspect of the firm. By examining various forms of restructuring, we provide empirical evidence that asset restructuring and governance restructuring play significant roles before bankruptcy filing. Our analysis shows that financial restructuring before bankruptcy is influenced by the holdout problem among creditor groups. Evidence suggests that the fraudulent conveyance provision does not pose a serious impediment to divestitures during the two years before bankruptcy. The evidence also indicates that Chapter 11 reorganization is lenient toward management. Although Chapter 11 allows the firm to breach burdensome executory contracts with employees, our findings suggest that union busting is not an important part of the reorganization process. Finally, we identify various financial characteristics to predict the different types of restructuring a firm may undertake.     

Optimal bankruptcy laws across different economic systems

We model fundamental differences across economic systems andpropose optimal bankruptcy laws. We show that creditor-debtorrelationships in a given economy are affected by the abilityof creditors to obtain information about fundamentals and themanagers' ability to strategically use their private information.An optimal bankruptcy law utilizes creditors' information whileminimizing managers' use of strategic information. Our proposedlaws for a developed bank-based system like Germany includea creditor chapter only, for a developed market-based systemlike the United States include both a creditor chapter and adebtor chapter, and for an underdeveloped system include botha creditor chapter and a debtor chapter that gives the managermore protection than in a market-based system.     

How does credit risk affect cost management strategies? Evidence on the initiation of credit default swap and sticky cost behavior

In this paper, we examine the effect of credit defaults swaps (CDS) initiation on reference firms' cost management strategies. CDS contracts provide insurance protection for creditors, inducing a shift in bargaining power from borrowers to creditors and an excessive incidence of bankruptcy. Anticipating more intransigent creditors in debt renegotiations and higher bankruptcy risk, CDS firms are incentivized to mitigate risk through decreasing cost stickiness after CDS initiation, as cost stickiness lowers liquidity and triggers early covenant violations. We find that, on average, CDS initiation is associated with a decline in reference firms' cost stickiness. This association is more pronounced for less liquid, financially distressed, and lower credit quality firms. We also find that CDS firms with a reduction in cost stickiness will exhibit lower future bankruptcy risk than CDS firms without such as reduction in stickiness. Collectively, our findings suggest that the CDS-induced “empty creditor problem” causes reference firms to undertake more conservative cost management practices to alleviate downside risk.     

Self‐Fulfilling Prophecies of Failure: The Endogenous Balance Sheets of Distressed Companies

This article analyses a problem at the intersection of accounting, law, and economics: the economically efficient operation of legal arrangements for company failure is undermined because valuations of assets and liabilities become unstable once a firm is distressed. The paper draws on the three disciplines to show the pivotal role of asset and liability valuations in answering the legal question, whether the firm is insolvent, and the economic question, whether the firm should fail and its assets be redeployed to an alternative use. U.S. and U.K. evidence reveals a disconcerting indeterminacy in these processes: the probability that a firm will fail affects significantly the valuations assigned to assets and liabilities; but at the same time the valuation of assets and liabilities itself determines the probability of failure. This balance sheet endogeneity is then shown to delay economically efficient management changes under debtor‐oriented U.S. Chapter 11, and to induce unnecessary costly bankruptcy with creditor‐oriented U.K. receivership/administration. Recent cases trace this endogeneity in failures involving often controversial countermanding of huge financial claims.     

Explaining breakdowns in interbank lending: A bilateral bargaining model

The paper provides a simple model for interbank loans. Since interbank trades are usually over-the-counter transactions, we use a bilateral bargaining model and apply the Nash bargaining solution. We determine the threat points and the bargaining frontier of debtor and creditor banks. We ask under which conditions interbank lending will break down.     

How do banks resolve firms’ financial distress? Evidence from Japan

The main purpose of this paper is to investigate how banks resolve firms?? financial distress in Japan. Our results show that distressed firms that have more unsecured bank debt are more likely to restructure debt successfully out of court. Second, private debt restructuring is conducted during the year in which a financially distressed firm would be compelled to report negative net worth because of substantial accounting losses if no debt restructuring plans were implemented. Third, firms that are already in a negative net worth situation are more likely to receive debt forgiveness and/or debt-for-equity swaps. Finally, both the 1-year-lagged total liabilities-to-assets ratio and accounting losses are positively related to the private workout level. These results suggest that banks resolve firms?? financial distress in shareholders?? and creditors?? interests. We argue that, along with bankruptcy laws, the stock exchange rules and the fact that banks are allowed to hold shares in these firms affect the resolution of firms?? financial distress.     

Business environment and the incorporation decision

Using firm-level data from 52 countries we investigate how a country’s institutions and business environment affect firm’s organizational choices and what impact the organizational form has on access to finance and growth. We find that businesses are more likely to choose the corporate form in countries with developed financial sectors and efficient legal systems, strong shareholder and creditor rights, low regulatory burdens and corporate taxes and efficient bankruptcy processes. Corporations report fewer financing, legal and regulatory obstacles than unincorporated firms and this advantage is greater in countries with more developed institutions and favourable business environments. We do find some evidence of higher growth of incorporated businesses in countries with good financial and legal institutions.     

Insolvency proceedings from a sustainability perspective

Sustainability is a wide concept including environmental, economic, social/culture, and political dimensions. Currently, sustainability research is a rich scientific discipline producing a significant number of research papers. However, sustainability in the context of insolvency proceedings has attracted little research compared with, for example, how much attention corporate social responsibility has received in company law research. This article studies sustainability in the context of liquidation and restructuring proceedings and the preservation of different kinds of resources (natural, manufactured, human, and social capital) in insolvency procedures. The purpose of insolvency proceedings may prevent the full implementation of sustainability. In bankruptcy, the administrator must maximise the selling price for creditor satisfaction, and there are few possibilities to promote sustainability. When facing an acute environmental hazard, in the name of public interest, a bankruptcy estate with assets usually has to act unless the law stipulates that society is responsible for taking care of the problem. In restructuring proceedings, the main purpose is to continue the debtor's business. It depends on the markets how sustainable the debtor company must be to achieve profitability. If becoming a profitable company in a “green” or otherwise sustainable market requires costly efforts, creditors' interests may require the sale of the assets. The author views through sustainability lenses EU Restructuring and insolvency Directive (2019) and finds there is not much of a sustainability approach included.     

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.     

Convertible Securities and Bankruptcy Reforms: Addressing Too Big to Fail and Reducing the Fragility of the Financial System*

Eliminating too big to fail should be the first priority of any regulatory reform. But this is easier said than done. As the crisis has taught us, when the systemic risks are perceived to be large, regulators will be very reluctant to close down insolvent firms or impose losses on creditors. So how do we reduce these risks so that regulators can credibly commit to a policy of allowing financial companies to fail and not resort to rescues or bailouts? The author proposes two complementary approaches to this problem: The first is to design capital structures with corrective mechanisms that kick in when a financial firm displays signs of trouble, but still has positive economic capital. To this end, the author endorses the Squam Lake Report's proposal that encourages financial firms to issue convertible debt with an “automatic” provision for converting to equity. In contrast to the Squam Lake proposal, however, the author argues that the conversion to equity should not depend on regulators' decisions and should take place before individual banks and the financial system are in full crisis mode. The second approach is to design a resolution mechanism that will close failing financial firms when early intervention has not led to the firm's recovery. The author argues that the best model for this mechanism is bankruptcy, because of its resolution of claims according to predetermined rules rather than regulatory discretion. However, certain forms of early intervention can also help to lower the costs of permitting firms to fail. For example, the Squam Lake idea that financial institutions be required to develop living wills should make it easier to unwind these firms in an orderly fashion and provide regulators with insight into the degree of systemic risk that these firms impose. The author notes that the challenges associated with getting the executives of healthy banks to plan for their own bankruptcy may indicate that a better use of regulatory resources might be to view the living will as one of the tools of prompt corrective action for firms that become undercapitalized but are still solvent. Once a firm has been declared undercapitalized, regulators would have greater bargaining power to insist on a serious plan for bankruptcy.     

Control rights, debt structure, and the loss of private benefits: the case of the UK insolvency code

We show how the efficiency of reorganization is affected bythe distribution of control rights under the U.K insolvencycode. Control rights raise particular problems when creditorshave different incentives to keep the firm as a going concern.Such differences may arise from the possession of private benefitsby particular creditors which are lost if the debtor firm isliquidated. The incidence of inefficient liquidations is influencedby the size and seniority of creditors' claims. The currentU.K. code is widely thought to give rise to inefficient liquidations.We show, however, that inefficiency depends upon the debt structureand whether the controlling creditor in formal bankruptcy hasprivate benefits.     

Strategic Bankruptcies and Price Reactions to Bankruptcy Filings

This study investigates whether the stock market differentiates between firms that file bankruptcy petitions for strategic reasons and firms that file bankruptcy petitions for financial reasons. We perform both univariate and regression tests on a sample of 245 firms that filed Chapter 11 bankruptcy petitions between 1981 and 1996. After controlling for bankruptcy outcome, probability of bankruptcy, firm financial condition, and firm size, we find that, in the period around bankruptcy filing, firms that file bankruptcy petitions for financial reasons have significantly larger stock price declines than firms that file bankruptcy petitions for strategic reasons.     

Access to Collateral and Corporate Debt Structure: Evidence from a Natural Experiment

We investigate how firms respond to strengthening of creditor rights by examining their financial decisions following a securitization reform in India. We find that the reform led to a reduction in secured debt, total debt, debt maturity, and asset growth, and an increase in liquidity hoarding by firms. Moreover, the effects are more pronounced for firms that have a higher proportion of tangible assets because these firms are more affected by the secured transactions law. These results suggest that strengthening of creditor rights introduces a liquidation bias and documents how firms alter their debt structures to contract around it.     

关于银行业金融机构破产的相关问题研究

2008年美国次贷危机引发的全球金融危机将世界经济带入了谷底,银行破产问题成为国内外金融界热议的话题,备受瞩目。随着金融创新的不断发展,银行业开放程度的加深以及我国经济转型的深入,银行将面对更加复杂的环境,面临更加严峻的挑战,风险和危机需要重点关注,因此,银行破产问题的重要性愈发凸显。本文拟就银行破产有关问题做简单探讨。     

Question the Unquestionable Beauty of A Collective Proceeding for All Sovereign Debt Claims

The new challenges presented by the current Eurozone crisis and the NML Capital v. Argentina case are likely to shift the international community's attention from holdout behavior in foreign bonds restructuring to inter‐creditor issues. In the past years, many academics, and nongovernmental organizations concerned with debt relief, have put forward proposals to create a bankruptcy regime for states. But none of these proposals has seriously examined what rules should apply to treatment among creditors. Moreover, all insist that there must be a collective proceeding for all sovereign debt claims, without explaining why. This approach is simply taken for granted, as it is one of the fundamental principles of bankruptcy law. The article questions this orthodoxy through examining the nature of sovereign debt crisis, the feature of the limited pool of sovereign assets, and the nonliquidable fact of the sovereign debtor. It also argues that the common pool problem does not exist in the sovereign debt context.     

担保物权制度改革降低了企业债务融资成本吗?——来自中国《物权法》自然实验的经验证据

本文运用双重差分法考察以《物权法》出台为标志的担保物权制度改革是否降低了企业的债务成本。实证结果显示,《物权法》出台后,与固定资产占比较高的企业相比,固定资产占比较低企业的债务成本显著降低。进一步,与《物权法》出台通过扩大可抵押资产范围、加强债权人保护等渠道降低企业债务成本的经济直觉一致,三重差分检验结果表明,担保物权制度改革对企业债务成本的降低作用表现出丰富差异性:其一,与法律制度环境较好地区相比,《物权法》对企业债务成本的降低作用在法律制度环境较差地区相对更大;其二,与金融市场化程度较高地区相比,《物权法》对企业债务成本的降低作用在金融市场化程度较低地区相对更大;其三,与融资约束较弱企业相比,对于融资约束较强的企业而言,《物权法》对债务成本的降低作用相对更强。这些基于中国经济实践的经验证据识别并揭示出了担保物权制度改革促使企业债务成本下降的作用机理,从而对有效缓解企业融资难、融资贵等问题具有借鉴意义。     

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.