Dutch corporate insolvency law: On the brink of a revolution?

The Dutch Bankruptcy Code (DBC) has not changed fundamentally over the more than 110 years of its existence, at least as far as corporate insolvency proceedings are concerned. On 1 November 2007, however, a committee of insolvency experts presented a draft for an entirely new code to the Ministry of Justice. Whether this new code will gain the force of law and whether this will happen within the near future remains uncertain but the proposals will in any event dominate discussions on insolvency law in the Netherlands for the foreseeable future. The main goal behind many of the proposals is improving the ability to successfully restructure companies that experience financial difficulties. To this end the proposals include various measures that would weaken the position of (secured) creditors. The proposals include widening the scope of the cooling-off period during which secured creditors are unable to enforce their security by granting the administrator a right of use of assets subject to security interests. The ability to rely on early termination clauses in contracts is also reduced during the cooling-off period. The position of secured creditors is further weakened by a proposal to grant the right to sell assets that are subject to security interests to the administrator if he continues the business. Under the current bankruptcy code, secured creditors can largely ignore insolvency proceedings, there is no general stay on enforcement and, early termination clauses in contracts are generally thought to be valid and enforceable during insolvency proceedings. Although banks have already argued that weakening the position of secured creditors will limit the ability to restructure companies, it seems safe to assume that the relatively comfortable position that secured creditors currently enjoy during insolvency proceedings in the Netherlands will be under fire due to the proposals for a new bankruptcy code. Copyright © 2008 John Wiley & Sons, Ltd.     

Does pre‐packed bankruptcy create value? An empirical study of postbankruptcy employment retention in The Netherlands

In recent years, there has been growing interest in whether pre‐packed bankruptcy can be a mechanism through which firms facing imminent insolvency can preserve value. Although an extensive body of literature exists on “pre‐packs,” whether such techniques really preserve value remains ambiguous. By analysing bankruptcy proceedings filed with Dutch courts in the period 2012–2018 through the lenses of real options and debt overhang theory, we examined employment retention postbankruptcy as a consequence of the type of bankruptcy proceeding (pre‐packed bankruptcy and conventional bankruptcy) and the severity of prebankruptcy financial distress. The results show that in the Netherlands, a pre‐packed bankruptcy, when compared with a conventional bankruptcy proceeding, positively impacts employment retention rates after bankruptcy. The severity of financial distress before bankruptcy does not affect employment retention rates postbankruptcy. This implies that despite the amount of resource slack, the preservation of employee value is better served under a pre‐packed bankruptcy than a conventional bankruptcy proceeding. This finding is important for insolvency practice, as up to 22 June 2017, employee rights in the Netherlands (including redundancy) were not considered to be automatically transferred to the firm acquiring the bankrupt debtor's assets when a pre‐packed bankruptcy was applied. Implications for insolvency regulation and practice are discussed.     

Universalism and the recognition of group proceedings under the UNCITRAL Model Law in Montenegro

Among the most topical insolvency issues in 2017 was the Croatian “Lex Agrokor”—a controversial “tailor‐made” law providing a unique restructuring opportunity for the largest Croatian conglomerate, the parent company of which was otherwise facing bankruptcy. Soon after the “extraordinary administration procedure” began, the appointed administrator started filing motions for the recognition of the alleged group insolvency as foreign insolvency proceedings in a number of neighbouring and other European countries, most of which have adopted the UNCITRAL Model Law on Cross‐Border Insolvency. It was an attempt to save the conglomerate's property from being seized in a disorderly fashion by various secured creditors, most noticeably, the largest Russian financial institution Sberbank, which contested these motions with varying success. This article, however, does not present an effort to comprehensively analyse the ongoing legal battle but rather adopts a broader approach to examining the Lex Agrokor to establish grounds for more general conclusions. More precisely, the purpose of this article is twofold. First, to offer strong arguments that, from the standpoint of typical insolvency legislation based on the Model Law, such as that of Montenegro, both the actual and future group proceedings initiated under the Lex Agrokor should fail to meet recognition requirements. Second, based on the preceding case study, to offer conclusions on how to further promote universal approach regarding group insolvencies by emphasizing exactly what the national laws regulating group insolvency should not feature so as to have the proceedings introduced therewith recognized in countries adopting the Model Law.     

The effectiveness and efficiency of corporate insolvency law—part two

Little empirical research has been done in the Netherlands (or internationally) into the effect of corporate insolvency proceedings. The Dutch legislature has made several attempts in the past decades to revise the current Dutch Bankruptcy Act (Faillissementswet) of 1893, while almost nothing is known about the effectiveness and efficiency of the Dutch corporate insolvency law. I have studied the effectiveness of the current Dutch insolvency law and of European Directive 2001/23/EC which is incorporated in this law, on the basis of theoretical and large‐scale empirical research. The study concerned all 4167 of the corporate insolvencies that ended in 2004. In the first part of this Article (International Insolvency Review, Volume 17, 3, Winter 2008, pp. 189–209), the research results showed that the Dutch Bankruptcy Act achieved the goals set on it only to a limited degree and that the informal restructuring procedure is of great social importance. In this second part, I concentrate on the conditions imposed by European Directive 2001/23/EC on the European national legislatures to protect employees' rights: automatic transfer of employment contracts in the event of transfers as part of insolvency proceedings, together with measures to prevent misuse of insolvency proceedings in such a way as to deprive employees of the rights provided for in this European Directive. The study shows that, in the Netherlands, not applying automatic transfer of employment contracts when an undertaking or business is transferred as part of an insolvency proceeding does not result in large‐scale misuse of insolvency law. It appears that automatic transfer of employment contracts outside insolvency proceedings can actually impede the informal restructuring of financially unsound companies. These surprising results are interesting for corporate insolvency proceedings worldwide. Copyright © 2009 John Wiley & Sons, Ltd.     

The legal responses of Canada and Poland to international bankruptcy and insolvency with a focus on cross‐border insolvency law

This article discusses and compares the respective legal responses of Canada and Poland to international bankruptcy and insolvency with a focus on cross‐border insolvency law. Specifically, the issues addressed herein concern jurisdiction, recognition of foreign bankruptcy proceedings, and co‐operation with foreign courts and foreign administrators. Notwithstanding some real differences between Canadian and Polish international insolvency proceedings, both legal regimes may be compared, since both countries have adopted many of the principles contained in the UNICTRAL Model Law on Cross‐Border Insolvency. The major impetus behind the changes established by Canada in its bankruptcy and insolvency laws have been the economic realities produced by the North American Free Trade Agreement. Likewise, Poland's accession to the European Union (EU) has been a major catalyst for revising the Polish Insolvency and Restructuring Act. Part II of the said act is entirely devoted to international insolvencies. However, following Poland's adherence to the EU, those sections of the Polish Insolvency and Restructuring Act that deal with international or cross‐border insolvencies will be severely limited or constrained in scope. The article indicates that Poland, the EU and Canada are taking the necessary steps to meet the needs of debtors who would like to restructure in an international setting. Copyright © 2006 John Wiley & Sons, Ltd.     

Bankruptcy prediction: Application of the Taylor's expansion in logistic regression

The purpose of the present study is to test whether Taylor's series expansion can be used to solve the problem associated with the functional form of bankruptcy prediction models. To avoid the problems associated with the normality of variables, the logistic model to describe the insolvency risk is applied. Taylor's expansion is then used to approximate the exponent of the logistic function, or the logit. The cash to total assets, cash flow to total assets, and shareholder's equity to total assets ratios operationalize the factors affecting the insolvency risk. The usefulness of Taylor's model in bankruptcy prediction is evaluated applying the logistic regression model to the data from the Compustat database. The classification accuracy in the test data for the first and second years before bankruptcy show that the classification accuracy of a simple financial ratio model can be increased using the second-order and interaction terms of these ratios. However, in the third year, for the test data, Taylor's expansion is not able to increase the classification accuracy when compared with the first-order model.     

Promoting fairness in English insolvency valuation cases

This is the second part of a comprehensive study on fair measurement of value in English insolvency law. The author has already demonstrated in a previous article the importance of posing and responding to questions about fairness in the insolvency process. That article developed a specific framework to measure whether assets and businesses are fairly valued in insolvency and bankruptcy cases. The proposed communitarian, fairness‐oriented framework is based on a modified version of Rawls, Finch and Radin's concepts of fairness. It evidenced that, when assessed against fairness, none of the valuation techniques currently available to the courts are without limitations. Building on the findings of this previous work, this article investigates whether English case law: (i) achieves a fair valuation of the debtor's assets and business; and (ii) protects interested parties (mainly creditors and shareholders) who have realistic prospects of receiving a distribution‐ against unfair harm.     

The new poor person's bankruptcy: Comparative perspectives

A significant policy issue in personal insolvency concerns the debtor with little income and few assets who may be unable to afford bankruptcy in those jurisdictions which require payment to access the individual bankruptcy system. The challenge of addressing the situation of these debtors is one experienced both by long standing personal insolvency systems and newer system in emerging markets. This article introduces a special issue of the International Insolvency Review which considers the responses of several common law, civil law and mixed regimes to this policy topic. The article discusses the background to the English Debt Relief Order enacted in 2009 as a procedure for low‐income debtors, outlines salient issues raised by its implementation and discusses research themes related to the existence of the “No‐Income‐No Asset” debtor, including the structure and financing of the bankruptcy system, the contribution of NINA procedures to access to justice, the role of intermediaries in the bankruptcy system and the political economy of bankruptcy reform.     

Asset Sales and Secured Creditor Control in Restructuring: A Comparison of the UK,US and Canadian Models

The primary insolvency restructuring mechanism in the UK is administration under the Insolvency Act 1986, as amended by the Enterprise Act 2002. In an administration, an insolvency professional known as an administrator, who is accountable to the insolvent company's creditors as a whole, is appointed to oversee the restructuring. The administration process was designed to rehabilitate distressed but viable companies and businesses and to maximize creditors' recoveries. Increasingly, however, insolvent companies are using this process to sell substantially all of their assets through pre‐packaged administrations or ‘pre‐packs’. In a pre‐pack, the insolvent company and its senior creditors negotiate the terms of the sale prior to initiating administration proceedings and appointing an administrator. The administrator then implements the deal, often with little or no input from junior creditors or other stakeholders. Both the US Bankruptcy Code and the Companies' Creditors Arrangement Act in Canada permit insolvent companies to sell substantially all of their assets under the auspices of the restructuring legislation. This article compares pre‐packs with these US and Canadian processes, arguing that they are all functionally equivalent in that they facilitate quick realizations for secured creditors by bypassing traditional restructuring processes. This analysis suggests that pre‐packs may give too much control over the restructuring process to secured creditors, encouraging rent‐seeking and other value‐destructive behaviours that undermine the fundamental goals of insolvency law. Copyright © 2017 INSOL International and John Wiley & Sons, Ltd.     

A case of constitutional apples and oranges: a functional comparison of pension priority and benefit guarantees in U.S., U.K. and Canadian insolvency and pension law regimes

Canada's insolvency law reform increased the priority granted to employer‐sponsored pension claims. The article compares the treatment of such claims in the U.S., the U.K. and Canada. A comparison of the legislative provisions concerning pension funding shortfalls from contribution arrears or economic underperformance in relation to the assumptions used for investment income or liability valuations finds that insolvency law has been used to address contribution arrears, but risks from economic underperformance have been addressed by pension benefit insurance. Post‐insolvency priority for contribution arrears provides appropriate incentives to discourage pre‐insolvency preferences for payments to other creditors, while shortfalls from economic underperformance do not involve issues of preference between creditors. The absence of any insolvency rationale for changing priority for shortfalls from economic underperformance and the likely disparity between the assets available to satisfy clams and the much larger amounts of such shortfalls makes the use of insolvency law to address this risk much less effective than insurance. Canada, however, has not adopted the insurance policy instrument used in the U.S. and U.K. to mitigate the impact of pension funding shortfalls. The constitutional inability of Canada to legislate in respect of matters of pension regulation that would allow it to control the well‐known insurance problems of moral hazard and adverse selection may explain why it has only chosen to adopt an insolvency policy instrument. However, a change in priorities in insolvency may generate incentives for secured creditors that either undermine or reinforce this policy choice. Secured creditors could attempt to circumvent the new priority scheme through private arrangements with the debtor or to increase their monitoring activities to ensure the debtor is current in its pension contributions. Secured creditors choices will be influenced by the bankruptcy courts' interpretation of the preference provisions in the insolvency legislation. Copyright © 2009 John Wiley & Sons, Ltd.     

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.     

Conflicts of interest,intra‐group financing and procedural coordination of group insolvencies

Modern insolvency law instruments recognise the specificity of enterprise group insolvencies, premised on the existence of close operational and financial links between group members. It is widely accepted that maximisation of insolvency estate value and procedural efficiency depend on coordination of insolvency proceedings opened with respect to group entities. Such coordination is prescribed in the European Insolvency Regulation (recast), the United Nations Commission on International Trade Law (UNCITRAL) Model Law on Enterprise Group Insolvency and the recently reformed German insolvency law. Yet in insolvency, group members retain their own insolvency estates and pools of creditors. This is based on the traditional company law principle of entity shielding. Active communication and cooperation between insolvency practitioners and courts do not sit well with the separate (atomistic) nature of insolvency proceedings, as well as different and oftentimes conflicting interests of creditors in such proceedings. As a result, communication and cooperation may be restricted in a situation of conflicts of interest. This article explores how in the context of group distress the risks arising from conflicts of interest can be controlled and mitigated, while ensuring efficient cross‐border cooperation and communication to the maximum extent possible. It analyses three cutting‐edge coordination mechanisms, namely (a) cross‐border insolvency agreements or protocols, (b) special (group coordination and planning) proceedings and (c) the appointment of a single insolvency practitioner. It concludes that both the likelihood and significance of conflicts of interest correlate with the degree of procedural coordination. Therefore, conflict mitigation tools and strategies need to be tailor‐made and targeted at a specific level and coordination mechanism.     

“Too big to fail”? The Agrokor case and its impact on West Balkan economies

From about April 2017, Agrokor became the main economic topic in the Balkans. Once the greatest pride of the Croatian economy, it became a serious problem for its government. Its systemic importance for the country and the region required an immediate legislative solution. The Government had Parliament pass a special law intended to save this company. The special law on the procedure of extraordinary administration in companies of systemic importance adopted in April 2017 is an interesting example, because it introduced a new insolvency procedure titled “extraordinary administration” clearly following the example of the Italian Legge Marzano, which was adopted in order to save the Parmalat group in 2003. It also represents an example of a collision of legislation in the case of cross‐border insolvency proceedings inside and outside of the European Union, where different jurisdictions have diverging standpoints on the question of its recognition as a foreign insolvency procedure. However, once the rescue proceedings began, numerous (and some dubious) interests of the different stakeholders came to the light. The government tried not only to rescue the company and its assets throughout the Balkans region but also to acquire control of it. This was especially visible through the prerogatives of the extraordinary commissioner, formally appointed by the court, but in fact a government official. Creditors at risk, mainly Russian and Italian banks, filed lawsuits to prevent the selling of the debtor's assets. At the end, the majority creditors called to vote on the settlement agreement became the new owners of the company. However, Agrokor is still far from the end of the crisis. It has more than 60,000 employees in the region and their destiny depends on the outcome of the crisis. In more recent times, the case also revealed major political scandals.     

The Environmental Liabilities of a Bankruptcy Estate

The conflict between the bankruptcy creditors and the environmental responsibilities of a bankruptcy estate is discussed globally. The creditors' receivables are usually included in the protection of property rights regulated by Constitution. On the other hand, one can ask whether the bankruptcy estate is breaking the law as an operator by refusing to abolish the harmful environmental pollution. The bankruptcy estate is deemed to be an operator when it has the legal and factual possibility of taking the necessary environmental actions. Accordingly, the costs of the environmental measures taken by authorities instead of the bankruptcy estate must be paid with a super priority from the assets of the bankruptcy estate. Instead, the question concerning the priority status of private environmental damages is a political matter. The argumentation presented in the article may contribute new legislation concerning the environmental liabilities of bankruptcy estates. Copyright © 2017 INSOL International and John Wiley & Sons, Ltd.     

Maritime cross‐border insolvency in China

Due to the high degree of mobility of ships and the special operational structures of shipping companies, it is difficult to harmonise the cross‐border insolvency regime with the maritime law regime governing ships. One of the typical examples is the recent bankruptcy of Hanjin Shipping Co Ltd. Chinese creditors were heavily affected by the bankruptcy of Hanjin. However, Hanjin never filed an application to have its Korean insolvency proceeding recognised in the People's Republic of China (PRC). Nor did it commence any ancillary insolvency application under the Enterprise Bankruptcy Law of the PRC. Taking Hanjin's bankruptcy as an example, this article examines the current statutory regime of cross‐border insolvency in the PRC in detail and analyses the approach adopted by the Chinese courts to resolve the conflicts that arise between the cross‐border insolvency and maritime law regimes.     

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。     

The Future Direction of China's Cross‐border Insolvency Laws,Related Issues and Potential Problems

The enactment of bankruptcy laws by the People's Republic of China (PRC or China) in 2006 was a necessary step in the development of its economy. This law represented a significant modernisation of the insolvency framework, supporting the transforming economy, but it was also a law of political expediency, for the enhancement of external relations. One aspect of the enhancement of external relations was the provision of cross‐border insolvency rules. However, this complex area of law was addressed in only one article, which was only a starting point, leaving many details unaddressed, and further reforms are required. In particular, it is desirable that the law provides a greater level of predictability as to the likely outcomes of cross‐border insolvencies, to encourage inward trade and investment, as well as encourage external trade. Both inbound and outbound business dealings are important to China's continued economic development. It is clear also, however, that insolvency law and practice is still a developing area for China. The establishment of a modern and unified system of insolvency laws was a big step for China, representing a sacrifice of tight controls on insolvencies, but the impact of this law in practice is only recently developing, with a loosening of state controls, after a very slow start. 1 The establishment of a cross‐border insolvency framework represents a further challenge; one that is likely to beset with considerable difficulties, as any further development of this law would potentially entail some further loss of control over proceedings, not least in outbound cases, and resistance may be anticipated. In keeping with China's historical approach to lawmaking in the area of bankruptcy law, it is likely that the cross‐border insolvency framework will develop gradually and with caution. This article assesses the way forward in respect of cross‐border insolvency laws, contending that an incremental approach over a period of years, in three broad stages, is required, with more developed and country‐specific approaches providing a link, or interim stage, between the clarification of the Article 5 and the formal adoption of the United Nations Commission on International Trade Law Model Law on Cross‐Border Insolvency Proceedings 1997 (Model Law) in China. Copyright © 2018 INSOL International and John Wiley & Sons, Ltd.     

The origins and development of the office of registrar in bankruptcy of the High Court

This article examines the history of the office of Bankruptcy Registrar of the High Court of England and Wales. It is argued that the power of the registrars to act judicially grew from their authorisation to act pursuant to delegated powers introduced in 1869 and that this began a major shift in their role from being largely administrative to their current status as fully fledged (and renamed) insolvency and companies court judges. The fluidity of bankruptcy offices in the nineteenth century is also examined, demonstrating that certain bankruptcy officer‐holders moved freely between functions in the course of the development in the office of registrar from what might be called its administrative phase to the judicial phase with the eventual creation of a Bankruptcy Court and more recently the creation of a specialist insolvency and companies list in the new Business and Property Courts. Finally, it is argued that a factor in the foregoing developments and the increasing reputation of the bankruptcy registrars was the extension of their jurisdiction from pure bankruptcy work to include company insolvency, directors' disqualification cases and non‐insolvency company work, a significant increase in their trial work and their acquisition of an appellate jurisdiction.     

Reconsidering the Shareholder's Role in Corporate Reorganisations under Insolvency Law

A corporate reorganisation under insolvency law is commonly achieved by virtue of a reorganisation plan that provides for the distribution and sacrifice of value among all stakeholders in an insolvent company. Although the creditors' right to vote on such plans and to participate in the wealth distribution according to such plans is universally accepted, the role of old equity in a corporate reorganisation remains a topic that jurisdictions all over the world define very differently. This article first explores possible approaches to shareholders' treatment under insolvency law and supports their inclusion in insolvency proceedings that pursue corporate reorganisations. It then argues that equity interest should not solely be treated according to its economic value and consequently that no absolute priority rule should be applied against them as such treatment would ignore the fundamental difference between liquidation and reorganisation. Finally, it proposes a new cram‐down rule for a class of equity holders. Copyright © 2013 INSOL International and John Wiley & Sons, Ltd.     

Hurdles to debt relief for “no income no assets” debtors in Germany: A case study of failed consumer bankruptcy law reforms

Given that many overindebted households have low or no assets and income, governments have increasingly tried to adapt their consumer bankruptcy regimes to the needs and capacities of these NINA (“no income, no assets”) debtors. Most notably, since the mid‐2000s, some countries from the Anglosphere have created low‐cost, means‐tested, and administrative (i.e., nonjudicial) debt relief procedures as alternative to traditional bankruptcy for NINA debtors. By contrast, in some European countries such as Germany, legislators have tried—but until today failed—to create efficient debt relief measures for NINA debtors. This contribution aims to make English‐speaking readers familiar with the history of consumer insolvency law in Germany, with a focus on legislative developments regarding NINA debtors, and to identify actors, institutions, and ideas that have contributed—especially during the 2000s—to the failure of consumer bankruptcy reforms addressing the main problems of NINA cases in Germany (i.e., high hurdles to relief for debtors, high administrative efforts for trustees and courts, high costs for the public purse, and yet very few payments to creditors). The German case is relevant not only because it is a striking case of failure to adapt a debt relief regime to NINA debtors but also because German consumer bankruptcy law—despite its shortcomings—continues to serve as a template for insolvency law reforms in European and other countries.