Employee loan means a loan given by an employer to an employee for specific reasons with the expectation that such loan will be repaid to the employer in part of full and usually by periodic deductions from the employee’s salary/wages. The rationale for employee loans is that financial insecurity can be a productivity killer. However, if disputes arise in relation to the recovery of such loan, to which court should the employer seek remedy? In this article, I have attempted an answer to this question by comparing the law and practice of the National Industrial Court of Nigeria on recovery of employee loans with what obtains in other jurisdictions.
{"title":"Litigation of Employee Loans as a Labour Dispute: Comparing the Law and Practice in Nigeria with other Jurisdictions","authors":"Michael Dugeri","doi":"10.2139/ssrn.3512518","DOIUrl":"https://doi.org/10.2139/ssrn.3512518","url":null,"abstract":"Employee loan means a loan given by an employer to an employee for specific reasons with the expectation that such loan will be repaid to the employer in part of full and usually by periodic deductions from the employee’s salary/wages. The rationale for employee loans is that financial insecurity can be a productivity killer. However, if disputes arise in relation to the recovery of such loan, to which court should the employer seek remedy? In this article, I have attempted an answer to this question by comparing the law and practice of the National Industrial Court of Nigeria on recovery of employee loans with what obtains in other jurisdictions.","PeriodicalId":44862,"journal":{"name":"American Bankruptcy Law Journal","volume":"20 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2020-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"87696557","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The Insolvency Resolution of India has gone through a structural change due to the economic impact when The Insolvency and Bankruptcy Code 2016 was enacted. The Code provides a procedure for the insolvency resolution within a stipulated time frame. It made it possible for the creditors and debtors to claim the debt and the concerned Authority would decide over the matter within the specified time period. The main object of this code is to save and to ease out the termination of firms from the financial and economic condition.
The Economic and Financial subjects are the backbone of the code and the Adjudicating Authority, Appellate Authority and Judiciary have articulated applicable execution of the code and settled the hazy areas to give total lucidity, conviction, and consistency for the stakeholders.
Through this paper, I aim to discuss the interpretation of financial creditors and operational creditors in relation to the relevant provisions and some judicial pronouncements which have helped in the legal development under the Insolvency and Bankruptcy Code, 2016.
{"title":"Interpretation of Financial Creditor and Operational Creditor","authors":"Riyanka Jain","doi":"10.2139/ssrn.3702815","DOIUrl":"https://doi.org/10.2139/ssrn.3702815","url":null,"abstract":"The Insolvency Resolution of India has gone through a structural change due to the economic impact when The Insolvency and Bankruptcy Code 2016 was enacted. The Code provides a procedure for the insolvency resolution within a stipulated time frame. It made it possible for the creditors and debtors to claim the debt and the concerned Authority would decide over the matter within the specified time period. The main object of this code is to save and to ease out the termination of firms from the financial and economic condition.<br><br>The Economic and Financial subjects are the backbone of the code and the Adjudicating Authority, Appellate Authority and Judiciary have articulated applicable execution of the code and settled the hazy areas to give total lucidity, conviction, and consistency for the stakeholders.<br><br>Through this paper, I aim to discuss the interpretation of financial creditors and operational creditors in relation to the relevant provisions and some judicial pronouncements which have helped in the legal development under the Insolvency and Bankruptcy Code, 2016.<br><br><br>","PeriodicalId":44862,"journal":{"name":"American Bankruptcy Law Journal","volume":"30 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2020-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"75334787","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
I investigate how legal and institutional conditions around loan origination influence a private debt renegotiation process. Using a large sample of 15,000 loans on the European credit market, I apply a sequential logit model to consider the renegotiation likelihood, the conditional probability of multiple renegotiation rounds or multiple amended terms, and the renegotiation outcomes conditional on specific loan amendments. I find that legal systems with stronger protection of creditors control rights have a positive influence on renegotiation likelihood and favorable outcomes on amendments to amount or maturity. Stronger legal protection reduces renegotiation likelihood when creditors face potential strategic default by shareholders. The legal and institutional environment has a significant effect on how the initial design of the financial contract impacts the renegotiation process.
{"title":"How Legal and Institutional Environments Shape the Private Debt Renegotiation Process?","authors":"Christophe J. Godlewski","doi":"10.2139/ssrn.3500404","DOIUrl":"https://doi.org/10.2139/ssrn.3500404","url":null,"abstract":"I investigate how legal and institutional conditions around loan origination influence a private debt renegotiation process. Using a large sample of 15,000 loans on the European credit market, I apply a sequential logit model to consider the renegotiation likelihood, the conditional probability of multiple renegotiation rounds or multiple amended terms, and the renegotiation outcomes conditional on specific loan amendments. I find that legal systems with stronger protection of creditors control rights have a positive influence on renegotiation likelihood and favorable outcomes on amendments to amount or maturity. Stronger legal protection reduces renegotiation likelihood when creditors face potential strategic default by shareholders. The legal and institutional environment has a significant effect on how the initial design of the financial contract impacts the renegotiation process.","PeriodicalId":44862,"journal":{"name":"American Bankruptcy Law Journal","volume":"24 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2019-12-08","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"74799010","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Properly balancing between public and private interests is one of the most significant and complex challenges presented by modern insolvency law. The European Union insolvency law has recently embraced that challenge, by reinforcing the role that private actors, such as creditors and stakeholders, are called upon to play within the context of insolvency proceedings. That approach to insolvency has gradually reduced the impact of public actors, such as judges and public officers, in managing the debtor’s financial difficulties. The individual consent seems to be the new way of facing the debtor’s insolvency. First, this Article examines the role of individual consent in insolvency proceedings in terms of economic efficiency. It focuses on the tendency to favor agreements between the debtor and creditors or the insolvency practitioner in several European legal systems when they increase the likelihood to produce efficient results for both the parties. The second part of this Article focuses on the European Regulation on cross-border insolvency proceedings no. 848/2015. I offer some critical thoughts about the unilateral undertaking under article 36 of the European Regulation. It represents a relevant means of managing the debtor’s cross-border insolvency through an agreement between the insolvency practitioner in the main insolvency proceedings and local creditors in order to avoid the opening of inefficient secondary proceedings.
{"title":"The Role of Consent in Cross-Border Insolvency Proceedings: European and Comparative Perspectives From the Unilateral Undertaking Under Article 36 EIRR","authors":"M. Gaboardi","doi":"10.2139/ssrn.3553754","DOIUrl":"https://doi.org/10.2139/ssrn.3553754","url":null,"abstract":"Properly balancing between public and private interests is one of the most significant and complex challenges presented by modern insolvency law. The European Union insolvency law has recently embraced that challenge, by reinforcing the role that private actors, such as creditors and stakeholders, are called upon to play within the context of insolvency proceedings. That approach to insolvency has gradually reduced the impact of public actors, such as judges and public officers, in managing the debtor’s financial difficulties. The individual consent seems to be the new way of facing the debtor’s insolvency. First, this Article examines the role of individual consent in insolvency proceedings in terms of economic efficiency. It focuses on the tendency to favor agreements between the debtor and creditors or the insolvency practitioner in several European legal systems when they increase the likelihood to produce efficient results for both the parties. The second part of this Article focuses on the European Regulation on cross-border insolvency proceedings no. 848/2015. I offer some critical thoughts about the unilateral undertaking under article 36 of the European Regulation. It represents a relevant means of managing the debtor’s cross-border insolvency through an agreement between the insolvency practitioner in the main insolvency proceedings and local creditors in order to avoid the opening of inefficient secondary proceedings.","PeriodicalId":44862,"journal":{"name":"American Bankruptcy Law Journal","volume":"3 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2019-12-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"81962635","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The Italian insolvency and pre-insolvency frameworks have been reformed recently (2019, due to enter into force in September 2021 but now probably in 2022). This article recalls the intense period of reforms in Italian insolvency law, started in 2005 and culminated with the new ‘Code of enterprise crisis and of insolvency’. The Code introduces new rules for court-confirmed debt restructuring agreements (similar to schemes of arrangement) and judicial composition with creditors, as well as with regard to new rules for insolvency of groups, international jurisdiction and directors’ liability. The article addresses these novelties pointing out some unresolved issues. Finally, the article touches upon the compatibility of the new law with the Directive on restructuring and insolvency (Directive 2019/1023). Autonomy of sport, Private International Law, Public-private Governance, Corruption, Transnational Legal Order, Sports Economy, Legal Status of Sporting Organisations, Audit, Managerial Transparency, Economic Monitoring, International Sporting Convention
{"title":"The Italian Insolvency Law Reform","authors":"A. Zorzi","doi":"10.2139/ssrn.3492422","DOIUrl":"https://doi.org/10.2139/ssrn.3492422","url":null,"abstract":"The Italian insolvency and pre-insolvency frameworks have been reformed recently (2019, due to enter into force in September 2021 but now probably in 2022). This article recalls the intense period of reforms in Italian insolvency law, started in 2005 and culminated with the new ‘Code of enterprise crisis and of insolvency’. The Code introduces new rules for court-confirmed debt restructuring agreements (similar to schemes of arrangement) and judicial composition with creditors, as well as with regard to new rules for insolvency of groups, international jurisdiction and directors’ liability. The article addresses these novelties pointing out some unresolved issues. Finally, the article touches upon the compatibility of the new law with the Directive on restructuring and insolvency (Directive 2019/1023).\u0000Autonomy of sport, Private International Law, Public-private Governance, Corruption, Transnational Legal Order, Sports Economy, Legal Status of Sporting Organisations, Audit, Managerial Transparency, Economic Monitoring, International Sporting Convention","PeriodicalId":44862,"journal":{"name":"American Bankruptcy Law Journal","volume":"11 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2019-11-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"83593710","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Totaling in excess of $100 billion dollars in transactions annually, debt buybacks allow a company to repurchase bonds from investors, rewriting bargains and stripping away creditor control rights in the process. This Article shows that regulation systematically under-protects bondholders in the context of debt buybacks. It makes three points. First, bondholders confront information asymmetries that enable issuers to buy back creditor claims cheaply. Regulation imposes near negligible requirements on issuers to disclose information about the transaction. Lacking fiduciary protection, bondholder interests are vulnerable to being extinguished by issuers in the interests of promoting those of shareholders and managers. Second, buybacks diminish the power of creditor control rights. Alongside information asymmetries, bondholders confront coordination costs and tight deadlines within which to evaluate the terms of a buyback and changes to bondholder control rights. Owing to these costs, issuers can systematically underprice control rights. Bondholders will not act where the gains of agitation will be less than the cost of information gathering, coordination, and action. By strategically underpricing a buyback by an amount approximating these transaction costs, an issuer can pocket the difference between the price paid for the claim and that which should have been paid to bondholders for their bargain. Third, debt buybacks can allow one set of creditors (notably, banks) to extract value from bondholders. By pushing an issuer to buy back bond claims cheaply, banks (usually with greater individual exposure through loans) can increase their chances of being repaid. They can also acquire a more powerful voice in the issuer’s internal governance by muting that of bondholders. In concluding, this Article offers two proposals to bolster bondholder protection, advocating for greater disclosure and contractual fixes to safeguard the value of claims. These proposals help to preserve the welfare of investors and protect their longer-term confidence in debt capital allocation.
{"title":"Dismantling Bondholder Rights","authors":"Yesha Yadav","doi":"10.2139/ssrn.3473212","DOIUrl":"https://doi.org/10.2139/ssrn.3473212","url":null,"abstract":"Totaling in excess of $100 billion dollars in transactions annually, debt buybacks allow a company to repurchase bonds from investors, rewriting bargains and stripping away creditor control rights in the process. This Article shows that regulation systematically under-protects bondholders in the context of debt buybacks. It makes three points. First, bondholders confront information asymmetries that enable issuers to buy back creditor claims cheaply. Regulation imposes near negligible requirements on issuers to disclose information about the transaction. Lacking fiduciary protection, bondholder interests are vulnerable to being extinguished by issuers in the interests of promoting those of shareholders and managers. Second, buybacks diminish the power of creditor control rights. Alongside information asymmetries, bondholders confront coordination costs and tight deadlines within which to evaluate the terms of a buyback and changes to bondholder control rights. Owing to these costs, issuers can systematically underprice control rights. Bondholders will not act where the gains of agitation will be less than the cost of information gathering, coordination, and action. By strategically underpricing a buyback by an amount approximating these transaction costs, an issuer can pocket the difference between the price paid for the claim and that which should have been paid to bondholders for their bargain. Third, debt buybacks can allow one set of creditors (notably, banks) to extract value from bondholders. By pushing an issuer to buy back bond claims cheaply, banks (usually with greater individual exposure through loans) can increase their chances of being repaid. They can also acquire a more powerful voice in the issuer’s internal governance by muting that of bondholders. In concluding, this Article offers two proposals to bolster bondholder protection, advocating for greater disclosure and contractual fixes to safeguard the value of claims. These proposals help to preserve the welfare of investors and protect their longer-term confidence in debt capital allocation.","PeriodicalId":44862,"journal":{"name":"American Bankruptcy Law Journal","volume":"1 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2019-10-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"75537267","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Emma Cervantes, Victoria Dodev, Shane Ellement, Isabelle Sawhney
Italy should unilaterally extend maturities for its domestic government securities to facilitate an orderly and streamlined restructuring that provides Italy with necessary debt relief. Italy’s domestic government securities are issued as decrees under a 2003 Consolidated Act (the “Act”). Article 3 of the Act explicitly grants Italy the power to unilaterally extend maturities for all domestic government securities. To exercise this restructuring power, the Ministry of Economy and Finance (the “Ministry”) must issue a framework decree that authorizes the Treasury to unilaterally reprofile Italy’s debt. In 2011, Edelen et al. first proposed that Italy had the authority under its existing laws to unilaterally reprofile its sovereign debt. The following proposal expands upon and updates the Edelen et al. proposal. It demonstrates that the inclusion of the Collective Action Clauses (“CACs”) in some of its bonds does not foreclose the use of Italy’s Article 3 power. The proposal also describes the mechanics by which Italy would exercise its right to extend maturities. Unilaterally extending maturities does not require any retroactive utilization of the local law advantage. Nor does it expose Italy to significant legal risks in its domestic courts or under European treaties and conventions.
{"title":"Reprofiling Today for a Sustainable Tomorrow: A Unilateral Italian Debt Restructuring","authors":"Emma Cervantes, Victoria Dodev, Shane Ellement, Isabelle Sawhney","doi":"10.1093/CMLJ/KMAA007","DOIUrl":"https://doi.org/10.1093/CMLJ/KMAA007","url":null,"abstract":"Italy should unilaterally extend maturities for its domestic government securities to facilitate an orderly and streamlined restructuring that provides Italy with necessary debt relief. \u0000 \u0000Italy’s domestic government securities are issued as decrees under a 2003 Consolidated Act (the “Act”). Article 3 of the Act explicitly grants Italy the power to unilaterally extend maturities for all domestic government securities. To exercise this restructuring power, the Ministry of Economy and Finance (the “Ministry”) must issue a framework decree that authorizes the Treasury to unilaterally reprofile Italy’s debt. \u0000 \u0000In 2011, Edelen et al. first proposed that Italy had the authority under its existing laws to unilaterally reprofile its sovereign debt. The following proposal expands upon and updates the Edelen et al. proposal. It demonstrates that the inclusion of the Collective Action Clauses (“CACs”) in some of its bonds does not foreclose the use of Italy’s Article 3 power. The proposal also describes the mechanics by which Italy would exercise its right to extend maturities. Unilaterally extending maturities does not require any retroactive utilization of the local law advantage. Nor does it expose Italy to significant legal risks in its domestic courts or under European treaties and conventions.","PeriodicalId":44862,"journal":{"name":"American Bankruptcy Law Journal","volume":"223 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2019-04-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"79974550","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2019-03-31DOI: 10.1017/9781316711484.003
{"title":"Consumer Bankruptcy Theory and the Case for Debt Relief","authors":"","doi":"10.1017/9781316711484.003","DOIUrl":"https://doi.org/10.1017/9781316711484.003","url":null,"abstract":"","PeriodicalId":44862,"journal":{"name":"American Bankruptcy Law Journal","volume":"26 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2019-03-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"81737455","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2019-03-31DOI: 10.1017/9781316711484.002
{"title":"Financialised Capitalism and the Centrality of Household Debt","authors":"","doi":"10.1017/9781316711484.002","DOIUrl":"https://doi.org/10.1017/9781316711484.002","url":null,"abstract":"","PeriodicalId":44862,"journal":{"name":"American Bankruptcy Law Journal","volume":"15 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2019-03-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"78685698","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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