Abstract
The primary aim of this book is to understand bank bankruptcy law and to make suggestions on how to improve its design. In order to be able to do this, one first needs to understand the principles behind the general bankruptcy law.
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Notes
- 1.
Encyclopedia Britannica defines bankruptcy as “Status of a debtor who has been declared by judicial process to be unable to pay his or her debts.” However, the question is why such a status of bankruptcy is needed in the first place.
- 2.
We focus here on corporate bankruptcy law. See White (2005) for a comparison of corporate and personal bankruptcy law.
- 3.
The existing creditors may also try to renew their loan after the bankruptcy has already started because in most bankruptcy laws this could automatically give them a super-senior status against all remaining creditors.
- 4.
Institutional lenders can also coordinate on their own in order to prevent coordination problems. See Brunner and Krahnen (2008) for the case of bank pool formation in distressed lending in Germany.
- 5.
An example is the UK corporate bankruptcy law.
- 6.
- 7.
Davydenko and Franks (2008) show that French banks require more collateral to respond to a creditor-unfriendly bankruptcy code. However, they show that bank recovery rates remain remarkably different across countries with different bankruptcy laws.
- 8.
However, Acharya et al. (2009) provide evidence that firms more often engage in value-destroying diversifying acquisitions under creditor-friendly bankruptcy codes. Excessive conservatism spurred by creditor-friendly bankruptcy codes also hinders innovation; see also Acharya and Subramanian (2009). Berkovitch et al. (1997) show that creditor-friendly bankruptcy law may allow creditors to appropriate a debtor’s rents and therefore diminish investment into firm-specific human capital.
- 9.
Longhofer (1997) theoretically shows that creditor-friendly bankruptcy law enhances access to credit. Empirical evidence is provided by Berkowitz and White (2004). In order to lower the cost of debt, Cornelli and Felli (1997) show that bankruptcy law needs to move valuable control rights from the insolvent debtor to creditors before the start of the bankruptcy process. La Porta et al. (1997) show that countries with greater creditor protection have larger and more developed credit markets; see also Djankov et al. (2007).
- 10.
Even though creditors may protect themselves against strategic defaults, such actions may increase the cost of debt and lower its availability. Long-term creditors may demand durable collateral and force the firm to match liabilities with assets (Hart and Moore 1994). In this sense, creditor-friendly bankruptcy law that mitigates strategic defaults allows for longer maturity of debt and less collateral.
- 11.
Bisin and Rampini (2006) show that bankruptcy is especially important in an environment where the main creditor cannot monitor whether the debtor takes on additional debt from other creditors. They show that debtor-friendly bankruptcy law induces the debtor to declare bankruptcy in a timely manner. Bankruptcy adds value for the creditor because the court verifies the assets and liabilities of the debtor, liquidates the assets, and repays the senior creditor (the bank) first.
- 12.
- 13.
Secured creditors are also specialized for monitoring the value of the collateral before the bankruptcy commences, which decreases the cost of debt financing.
- 14.
A typical example of the use of the floating charge is UK bankruptcy law. A floating charge holder could, upon reneging on a loan contract, conduct a private liquidation and have full control over the appointment of a receiver. In 2003 the power of the floating charge holder was somewhat decreased (Armour et al. 2007). In fixed charge debt security, only specific assets are pledged as collateral.
- 15.
Acharya et al. (2007) show that practically only reorganizations and virtually no liquidations occur during industry distress. Reorganizations also last substantially longer during industry distress.
- 16.
- 17.
Existing managers may have a hard time adjusting to the new role. Filtering failure may occur, in which the manager may file for reorganization even though the first optimal decision would be to liquidate. In the framework of asymmetric information, White (1994) shows that filtering failure may become more pronounced if the majority of corporations in bankruptcy are ripe for liquidation.
- 18.
To prevent bankruptcy and repay debt, the manager can also sell off profitable parts of a business even though fire sales at depressed prices may result in huge losses.
- 19.
Two proxies for liquidation value are used: (i) firm’s assets specificity, and (ii) the ratio of intangible assets on the balance sheet.
- 20.
In an underdeveloped system, creditor- and debtor-friendly chapters of bankruptcy law should coexist as well, but debtors should be given even more power in bankruptcy.
- 21.
Claessens and Klapper (2005) provide evidence that creditor rights and judicial efficiencies act as substitutes. Higher creditor rights (except for an automatic stay) increase the number of bankruptcy procedures.
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Marinč, M., Vlahu, R. (2012). General Issues in Bankruptcy Law. In: The Economics of Bank Bankruptcy Law. Springer, Berlin, Heidelberg. https://doi.org/10.1007/978-3-642-21807-1_2
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