The European Insolvency Regulation and the UNCITRAL Model Law on Cross‐Border Insolvency

This article compares the Recast European Insolvency Regulation of 2015 with the UNCITRAL Model Law on Cross‐Border Insolvency of 1997, focussed on their scope of application, international jurisdiction and the coordination of main and secondary proceedings. The scopes of both catalogues of norms and their rules on coordination of main and secondary insolvency proceedings reflect one another. However, the Recast EIR makes a significantly greater contribution to the unification of law and is also more fully differentiated and more precise, even if this comes at a price, namely, limited flexibility. The UNCITRAL Model Law made an important contribution to the harmonisation of international insolvency law but requires now modernisation. Copyright © 2017 INSOL International and John Wiley & Sons, Ltd.     

Bridge over Troubled Water: The Revised Insolvency Regulation

The EU legislature has used the last two and a half years to negotiate a modernised framework for cross‐border insolvencies largely outside the spotlight of public debate. The revised Insolvency Regulation introduces new rules on secondary proceedings and innovative provisions on insolvency proceedings for groups of companies. Some parts of the final reform package were not originally envisaged by the European Commission, and it was the European Parliament and the Council that, in an unusual display of unity, agreed on more ambitious steps than the EU executive had proposed. However, not all that glitters is gold. The legislature missed the opportunity to clarify the concept of Centre of Main Interest, and it is still for the courts to establish international jurisdiction on the basis of rather vague criteria. It will soon be time to give life to the rules and ensure that cross‐border insolvencies are conducted more effectively than they are today. The new rules entered into force on 25 June 2015 and apply from 26 June 2017. Copyright © 2015 INSOL International and John Wiley & Sons, Ltd     

美国《公平披露条例》再审视

编者按:美国证券与交易委员会于2000年8月10日颁布的<公平披露条例>(下称"<条例>")旨在限制上市公司的选择性信息披露行为.随后美国又修订了内幕交易法的部分条文,试图以此来廓清公开披露与选择性披露相交叉的一些模糊领域.在<条例>实施一年之后,劳拉·西蒙·安格尔(时任美国证券与交易委员会委员)在大量调研的基础上于2001年12月发布本报告.报告中对信息披露方式、披露时间、披露对象和与市场互动的分析今天仍值得中国借鉴,尤其值得我们在修改<证券法>时参考.译文略有删节.     

Defining groups of companies under the European Insolvency Regulation (recast): On the scope of EU group insolvency law

This article examines the general scope of application of the provisions on insolvency regarding members of a “group of companies”, as included in Chapter V of the European Insolvency Regulation (recast) (“Recast EIR”), in order to review whether that scope is appropriate to deal with the different group structures in which business may be conducted. With the definition for a “group of companies” playing a paramount role in determining the scope of these provisions, the article includes a thorough analysis of the current definition for a “group of companies” as included in the Recast EIR. Based upon a teleological approach, the article argues in favour of an independent, broad and flexible interpretation of “group of companies”, in order to include a large number of groups within the scope of the Recast EIR's provisions regarding group insolvencies.     

Rights in rem,Article 5 and the EC Insolvency Regulation: an English perspective

The treatment of security interests is central to any insolvency régime, national or transnational. Under Article 5 of the EC Regulation on Insolvency Proceedings (E.C. 1346/2000) extensive protection is given to a security interest—or right in rem—over assets of the debtor situate in a Member State other than one in which insolvency proceedings have been opened. The absence, thus far, of any significant body of European case law on Article 5, allows commentators to put forward a range of views on how Article 5 ought to be applied. This article aims to examine the scope of Article 5 protection both conceptually and in terms of illustrations drawn largely from English insolvency law and practice. Particular attention is given to the following issues: what is meant by the ‘opening of insolvency proceedings’ with reference to Article 5; when a liquidator may pay off the holder of a right in rem; whether the rules under the Regulation for determining the situs of an asset alter the English common law position; whether Article 5 prohibits the discharge of an underlying debt by way of a restructuring plan; the position of unsecured creditors who attempt to acquire rights in rem prior to the opening of insolvency proceedings; and whether the English court's equitable jurisdiction to enforce a charge which does not comply with the lex situs, survives the coming into force of the Regulation. Through the discussion of these topics, this article seeks to identify an approach to the interpretation of Article 5 which is consistent not only across the wide range of issues identified but also with the broad policy objectives underlying the treatment of in rem rights in the Regulation. Copyright © 2006 John Wiley & Sons, Ltd.     

Lobbying and Audit Regulation in the EU

In this paper, we analyze comment letters submitted in response to the European Commission (EC) Green Paper on audit policy. We find that consistent with the theory of incentives and the presence of information asymmetries between rule-making bodies and interest groups, the highest participation within the consultation process came from auditors and preparers of financial statements. Additionally, our results suggest that these interest groups exhibit different strategic lobbying behaviors in terms of employing more self-referential arguments than other interest groups. Moreover, we provide evidence that self-referential argumentation strategies are more influential when expressing opposing views, whereas conceptually based argumentation strategies are more influential when expressing supporting views. We contribute to a more detailed understanding of the role that lobbyists and argumentation strategies played in the recent EU audit policy reform, and we infer that lobbying activities might have led the EC to moderate its proposals to obtain interest groups’ support.     

Some Observations on the New Group Coordination Procedure of the Reformed European Insolvency Regulation

The recast of the European Insolvency Regulation introduces a new coordination procedure for handling insolvencies of groups of companies. The procedure relies on a group coordinator to create a helpful group insolvency plan while the individual insolvency proceedings remain independent. Albeit being a step into the right direction, the procedure has significant shortcomings such as the weak position of the coordinator, a liberal opt‐in and opt‐out mechanism and the problem of forum shopping. In the end, the new procedure can be a valuable tool in limited cases and should be merely seen as an addendum to a variety of possibilities to handle group insolvencies. Copyright © 2015 INSOL International and John Wiley & Sons, Ltd     

Bank Insolvency, Deposit Insurance, and Capital Adequacy

This paper extends the Dowd (2000) model by introducing a risky investment technology. This assumption allows to introduce the possibility of an insolvency crisis. A banker may earn a positive expected profit by insuring depositors against the technological risk. If the bank has adequate capital, the insurance is credible and an insolvency crisis cannot occur. A public safety net may be unnecessary to prevent insolvency crises.     

欧盟对影子银行的监管路径与最新进展

2008年金融危机后,金融稳定理事会开始着力于全球范围内影子银行的研究和监管。欧盟为落实金融稳定理事会的推荐意见,主动强化了对影子银行的监管,其中货币市场基金和证券融资交易及金融工具再利用的透明度问题已经有了立法草案或正式法规。欧盟的立法实践为我国开展影子银行监管国际和国内两个层面的工作提供了有益借鉴。     

Reconsidering Procedural Consolidation for Multinational Corporate Groups in the Context of the Recast European Insolvency Regulation

Procedural consolidation, as a solution to the rescue of insolvent multinational corporate groups (‘MCGs’), is said to be able to preserve group value for creditors. This article explores the desirability of procedural consolidation in the EU in the light of theories of corporate rescue law, cross‐border insolvency law, multinational enterprises and relevant EU cases with reference to the European Insolvency Regulation. It argues that, based on current cross‐border insolvency rules in the EU, there is an inherent difficulty for procedural consolidation in balancing the goal of preservation of group value and the goal of certainty. The article also considers the new ‘group procedural coordination proceedings’ offered by the Recast European Insolvency Regulation and argues that it may help to supplement the gap left by the procedural consolidation in the EU. Copyright © 2017 INSOL International and John Wiley & Sons, Ltd.     

Private Equity,Buy‐outs and Insolvency Risk

Private equity restructuring using debt has been criticized for increasing financial distress and bankruptcy especially following the financial crisis. We build a unique dataset comprising the population of over 9 million firm‐year observations and 153,000 insolvencies during the period 1995–2010. We compare the insolvency hazard of the spectrum of buy‐out types within the corporate population over time and investigate the risk profile of the companies pre‐buy‐out. Controlling for size, age, sector and macro‐economic conditions, private‐equity backed buy‐outs are no more prone to insolvency than non‐buy‐outs or other types of management buy‐ins. Moreover, leverage is not the characteristic that distinguishes failed buy‐outs from those surviving.     

Productivity,Demand, and Regulated Price Effects Revisited: An Analysis of the Real Bilateral Exchange Rates of Four New EU Member States

This paper examines the behavior of internal price ratios and bilateral real exchange rates of a group of four new EU member states-Estonia, Hungary, Slovakia, and Slovenia. We employ a dynamic ordinary least squares panel estimator to investigate the relative importance of demand and supply influences on the internal and external exchange rates of these countries. Our analysis shows that both supply- and demand-side effects are important, though supply-side effects dominate. The paper also examines the role that administrated or regulated prices and the productivity of the distribution sector play in real exchange rate dynamics. We show that administrated prices have been a powerful force behind price and real exchange developments for our group of accession countries.     

自然人破产制度的建立

从法政策角度考量,自然人破产制度可以使债权人获得公平受偿,使债务人获得重生,这是自然人破产制度确立的最重要原因;而信贷消费的迅速发展,是我国确立自然人破产制度的社会基础。我国面临的城乡二元结构、信用体系的不健全只是建立自然人破产时必须予以考虑的法技术问题。在建立自然人破产制度时必须正视城乡二元结构、信用体制缺失等问题,并逐步建立自然人财产申报登记制度,完善信用制度。