Technically the king can do wrong in reorganizing insolvent corporations: evidence from Canada

Taken together the international move from liquidation to reorganization‐based bankruptcy regimes and the international move to abolish Crown priority in bankruptcy provide Canada with an opportunity to rethink Crown priority in bankruptcy. This paper makes the case that abolishing Crown priority in bankruptcy in Canada is optimal given a revaluation of traditional normative claims surrounding Crown priority in the context of a bankruptcy system that favours reorganization when possible. While this paper focuses on Canada, it engages in a normative assessment that may be useful for possible reforms to Crown priority in the United States and in other jurisdictions that, like Canada, have been influenced, not only by the English model, but also by the American bankruptcy and reorganization system. Copyright © 2004 John Wiley & Sons, Ltd.     

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 role of stakeholders on rejection of bankruptcy applications in the case of “poverty” of the estate: A Polish case study

The aim of this article is to supplement the Law and Economics area of science with regard to the scope of the ex ante effectiveness of bankruptcy law using the example of Poland. Bankruptcy law is effective in the ex ante stage when it eliminates from the market insolvent entrepreneurs who cannot even afford to cover the costs of bankruptcy proceedings. In these cases, the bankruptcy court should dismiss the petition for bankruptcy because of “poverty” of the insolvent estate. As a result, the insolvent debtor should be liquidated and deleted from the register of companies. This paper investigates entities whose bankruptcy petition has been rejected due to “poverty” of the insolvent estate. The study shows that, after the filing has been dismissed, the majority of these entities are not liquidated. To determine who is responsible for this state of affairs, the article identifies the stakeholders at the time that applications are filed for bankruptcy proceedings and also after the bankruptcy petition has been rejected. The article highlights stakeholders' diverging interests, strengths, and weaknesses to assess their potential impact on bankruptcy procedures that should be dismissed due to “poverty” of the insolvent estate.     

Bankruptcy: What is left for the creditors? A Belgian exploratory study

It is sometimes alleged that in cases of bankruptcy, there is often not much left for the creditors, especially for the ordinary unsecured creditors. This article examines, in an exploratory way, what the different classes of creditors, depending on their priority position, recover in cases of bankruptcy in Belgium, by investigating a sample of 286 bankruptcy files from the Commercial Court of Ghent (Belgium's second largest city). This article also explores what impact some existing proposals to improve the position of ordinary unsecured creditors in the event of bankruptcy would have had on the bankruptcy cases studied.     

The effect of personal bankruptcy exemptions on investment in home equity

Homestead exemptions to personal bankruptcy allow households to retain their home equity up to a limit determined at the state level. Households that may experience bankruptcy thus have an incentive to bias their portfolios toward home equity. Using US household data for the period 1996–2006, we find that household demand for real estate is relatively high if the marginal investment in home equity is covered by the exemption. The home equity bias is more pronounced for younger and less healthy households that face more financial uncertainty and therefore have a higher ex ante probability of bankruptcy. These results suggest that homestead exemptions have an important bearing on the portfolio allocations of US households and the extent to which they insure against bad shocks.     

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.     

A Monitoring Role for Deviations from Absolute Priority in Bankruptcy Resolution

Firms that have successfully reorganized under Chapter 11 of the bankruptcy laws of the United States frequently award shares of common stock in the reorganized firm to pre‐bankruptcy shareholders, even though pre‐bankruptcy creditors' claims are not fully satisfied. Using a sample of large publicly traded firms, these deviations from absolute priority (DAPR) are found to be positively related to the severity of agency costs within a financially distressed firm. US bankruptcy laws may exacerbate these agency costs by granting exclusivity to management during the reorganization period. Firms in which outside shareholders are more concentrated have a lower occurrence of DAPR indicating that blockholders provide an effective monitoring mechanism for controlling managerial behavior during reorganization. On the other hand, firms without this monitoring mechanism have a higher probability of DAPR indicating that creditors attempt to control managerial behavior by providing them with some sort of financial compensation via their equity holding in the firm. Finally, the evidence indicates that DAPR can be used to mitigate the hold‐up problem resulting from voting rights granted to both junior and senior claimants of the firm by US bankruptcy laws.     

The Chrysler effect: The impact of government intervention on borrowing costs

This paper studies intercreditor conflict arising from political interference in the bankruptcy process. The U.S. government’s intervention in the 2009 reorganizations of Chrysler and GM purportedly elevated claims of the auto union over those of the automakers’ senior creditors in violation of bankruptcy priority rules. Critics predicted that businesses would experience an increase in their borrowing costs because of the risk that politically-powerful junior claimants might now leap-frog other creditors. We examine the financial market where this effect would be most detectible, the market for bonds of highly unionized companies. We find no evidence that bondholders of unionized firms reacted negatively to the government intervention and reject the claim that investors viewed the reorganizations as establishing a precedent for priority jumping by organized labor.     

Ex Ante Costs of Violating Absolute Priority in Bankruptcy

A basic question for the design of bankruptcy law concerns whether value should be divided in accordance with absolute priority. Research done in the past decade has suggested that deviations from absolute priority have beneficial ex ante effects. In contrast, this paper shows that ex post deviations from absolute priority also have negative effects on ex ante decisions taken by shareholders. Such deviations aggravate the moral hazard problem with respect to project choice—increasing the equityholders' incentive to favor risky projects—as well as with respect to borrowing and dividend decisions.     

基于房地产市场的我国系统性金融风险测度与预警研究

本文阐释了基于房地产市场的系统性金融风险形成机制,据此建立了分阶段、跨部门的房地产市场的系统性金融风险网络模型,并运用2006-2017年16家上市银行数据,分析和测度了我国房价大幅下跌所引发的系统性金融风险水平和结构,构建了基于房地产市场的系统性金融风险预警指标并进行测算。研究发现:在房价下跌30%的压力情景下,我国金融体系的潜在总损失总体呈级数式上升,年均增长22.70%;基于房地产市场的系统性金融风险值(SR)呈现先上升后波动下降的总体趋势;系统性金融风险(SR)的脆弱性指标(FLI)整体呈现波浪式振荡变化,且与房地产贷款/权益整体呈反向变动,系统性金融风险(SR)的传染性指标(CTI)在2012-2017年呈持续下降趋势,且与金融市场压力指数、金融机构间资产占总资产比重呈现出高度的一致性变化趋势。最后,基于房地产市场的系统性金融风险预警指标(SRWI)值呈收敛式振荡走势,表明基于房地产市场的系统性金融风险总体可控且呈收敛式下降。     

The effect of discretionary actions on small firms' ability to survive Chapter 11 bankruptcy

This paper analyzes whether judges' actions within Chapter 11 bankruptcy affect debtor firms' ability to reorganize (e.g., debt restructurings and mergers) as opposed to being liquidated in Chapter 7 bankruptcy. Our main finding is that debtor firms' control of the process, e.g., the exclusivity period, affects their ability to restructure debt. A reduction in the exclusivity period decreases the likelihood of reorganization, but increases the likelihood of deviation from absolute priority when plans of reorganization are agreed upon. An extension of the exclusivity period, however, does not increase the likelihood of either reorganization or deviation from absolute priority.     

Dynamic capital structure with callable debt and debt renegotiations

We consider a dynamic trade-off model of a firm's capital structure with debt renegotiation. Debt holders only accept restructuring offers from equity holders backed by threats which are in the equity holders' own interest to execute. Our model shows that in a complete information model in which taxes and bankruptcy costs are the only frictions, violations of the absolute priority rule (APR) are typically optimal. The size of the bankruptcy costs and the equity holders' bargaining power affect the size of APR violations, but they have only a minor impact on the choice of capital structure.     

Can the Trade-off Theory Explain Debt Structure?

We examine the optimal mixture and priority structure of bankand market debt using a trade-off model in which banks havethe unique ability to renegotiate outside formal bankruptcy.Flexible bank debt offers a superior trade-off between tax shieldsand bankruptcy costs. Ease of renegotiation limits bank debtcapacity, however. Optimal debt structure hinges upon whichparty has bargaining power in private workouts. Weak firms havehigh bank debt capacity and utilize bank debt exclusively. Strongfirms lever up to their (lower) bank debt capacity, augmentwith market debt, and place the bank senior. Therefore, thetrade-off theory offers an explanation for: (i) why young/smallfirms use bank debt exclusively; (ii) why large/mature firmsemploy mixed debt financing; and (iii) why bank debt is senior.The trade-off theory also generates predictions consistent withinternational evidence. In countries in which the bankruptcyregime entails soft (tough) enforcement of contractual priority,bank debt capacity is low (high), implying greater (less) relianceon market debt.     

Does the Bond Market Predict Bankruptcy Settlements?

This study shows the extent to which deviations from the absolute priority rule increase or decrease the bankruptcy emergence payoff to traded (i.e., usually junior claimants) bondholders. The data indicate that, on average, bondholders benefit, albeit slightly, from absolute priority rule (APR) violations. This paper also examines the degree to which the bond market, in the bankruptcy filing month, anticipates departures from the APR and other influences on the payoff to bondholders. In other words, we investigate the informational efficiency of the market for bankrupt bonds. Overall, despite the complex and lengthy nature of bankruptcy proceedings, the results support efficiency.     

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.     

基于房地产市场的我国系统性金融风险测度与预警研究

本文阐释了基于房地产市场的系统性金融风险形成机制,据此建立了分阶段、跨部门的房地产市场的系统性金融风险网络模型,并运用2006-2017年16家上市银行数据,分析和测度了我国房价大幅下跌所引发的系统性金融风险水平和结构,构建了基于房地产市场的系统性金融风险预警指标并进行测算。研究发现:在房价下跌30%的压力情景下,我国金融体系的潜在总损失总体呈级数式上升,年均增长22.70%;基于房地产市场的系统性金融风险值(SR)呈现先上升后波动下降的总体趋势;系统性金融风险(SR)的脆弱性指标(FLI)整体呈现波浪式振荡变化,且与房地产贷款/权益整体呈反向变动,系统性金融风险(SR)的传染性指标(CTI)在2012-2017年呈持续下降趋势,且与金融市场压力指数、金融机构间资产占总资产比重呈现出高度的一致性变化趋势。最后,基于房地产市场的系统性金融风险预警指标(SRWI)值呈收敛式振荡走势,表明基于房地产市场的系统性金融风险总体可控且呈收敛式下降。     

Bankruptcy,absolute priority,and the pricing of risky debt claims

In practice, there are substantial deviations from the doctrine of ‘absolute priority’, which governs the rights of the firm's claimholders in the event of bankruptcy. To determine whether or not the possibility of such deviations is reflected in the prices of the firm's securities, this study examines the risk and return characteristics of financial claims against firms in court-supervised bankruptcy proceedings. Debt claims against bankrupt firms are indeed ‘risky’, exhibiting levels of systematic risk similar to that of common stocks in general. While some of the findings are anomalous, the data are generally consistent with the view that the capital market ‘properly’ prices risky debt claims to reflect both their risk characteristics and the possibility of departures from the doctrine of absolute priority.     

我国银行业金融机构破产法律制度研究

次贷危机引发的一系列银行倒闭事件引起了公众对银行业金融机构破产的关注。目前,我国的银行破产法律尚属空白。本文结合我国实际,对未来银行业金融机构破产法的诸多方面进行了研究并提出了立法建议。     

Bankruptcy, Warrants, and State-Contingent Changes in the Ownership of Control

We consider the design of securities that govern the distribution of cash flows and control rights for an investment project. An entrepreneur, endowed with managerial talent, contracts with an outside investor for required capital. Optimal contracts stipulate that the ownership of control and the distribution of cash flows are specified on a state contingent basis to manage the distortions that develop from the use of outside financing and so make the best use of the advantage in project management enjoyed by insiders. Our results illustrate that the use of warrants and convertible securities, which transfer control of the firm to outsiders in good states, and bankruptcy, which transfers control to outsiders in bad states, are related features of optimal contracts. Our model also indicates that firms will benefit from direct access to two types of bankruptcy processes resembling Chapter 7 and Chapter 11 (including deviations from absolute priority) of the bankruptcy code. This results differs from observed practices since stockholders cannot waive their rights for protection under Chapter 11. We show that when direct access to Chapter 7 is highly valuable, market participants have found clever ways to obtain it.Journal of Economic LiteratureClassification Numbers: G32 and G33.     

Variable selection and corporate bankruptcy forecasts

We investigate the relative importance of various bankruptcy predictors commonly used in the existing literature by applying a variable selection technique, the least absolute shrinkage and selection operator (LASSO), to a comprehensive bankruptcy database. Over the 1980–2009 period, LASSO admits the majority of Campbell et al. (2008) predictive variables into the bankruptcy forecast model. Interestingly, by contrast with recent studies, some financial ratios constructed from only accounting data also contain significant incremental information about future default risk, and their importance relative to that of market-based variables in bankruptcy forecasts increases with prediction horizons. Moreover, LASSO-selected variables have superior out-of-sample predictive power and outperform (1) those advocated by Campbell et al. (2008) and (2) the distance to default from Merton’s (1974) structural model.