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O direito do trabalho e a preservação da empresa no novo direito concursal: a Lei n.º 11.101/2005 e a sucessão de empregadores; Labor Law and the preservation of the company in the new bankruptcy law: law nº11.101/2005 and the sucessorship of employers

Ribeiro, Andre de Melo
Fonte: Biblioteca Digitais de Teses e Dissertações da USP Publicador: Biblioteca Digitais de Teses e Dissertações da USP
Tipo: Dissertação de Mestrado Formato: application/pdf
Publicado em 21/05/2009 Português
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46.05%
A organização do mercado de trabalho experimentou alterações significativas nas últimas décadas. Tais mudanças aumentaram significativamente as relações de trabalho não sujeitas à subordinação direta inerente à relação de emprego, porém também não consistentes com a autonomia existente nos contratos de prestação de serviço regulados pelo Direito Privado. Esse cenário promove novo estado de crise no Direito do Trabalho, pois seus instrumentos não correspondem com os anseios sociais referentes a tais formas de contratação. Nesse cenário, a sucessão de empregadores é analisada, a fim de identificar seus elementos e verificar sua aplicabilidade às empresas em crise. Esta análise torna-se necessária em virtude das modificações no Direito Concursal brasileiro promovidas pela Lei n. 11.101/2005. A referida lei implantou reformas significativas, alterando o objetivo nuclear e oferecendo novos instrumentos para assistir empresas em crise. Dentre tais instrumentos, novo procedimento de falência e a recuperação judicial afetam diretamente os direitos e prioridades dos credores trabalhistas. Considerando tais alterações, a aplicabilidade da legislação trabalhista relacionada à sucessão de empregadores na venda de unidades produtivas do devedor no contexto da recuperação judicial e da falência...

Contribuição ao estudo da curadoria de bens na execução: o Curator Bonorum da Bonorum Venditio; Contribution to the study of trusteeship in bankruptcy: the curator bonotum of the bonorum venditio

Groff, Fábio de Carvalho
Fonte: Biblioteca Digitais de Teses e Dissertações da USP Publicador: Biblioteca Digitais de Teses e Dissertações da USP
Tipo: Dissertação de Mestrado Formato: application/pdf
Publicado em 07/06/2010 Português
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56.02%
Dentre os personagens históricos ligados à execução, o curator bonorum é talvez o mais desconhecido, ou o menos estudado. Mas esse aparente "desinteresse" acerca da figura é incompatível com sua importância. Diversos são os textos doutrinários que apontam o curator como o antecessor histórico do síndico da falência, no direito anterior, e, nos dias atuais, do administrador judicial. No presente trabalho, apresenta-se a trajetória do curator bonorum e a influência que a curadoria teve no desenvolvimento dos meios de execução. Abordam-se, nesse sentido, a visão peculiar do romano sobre seu patrimônio, a importância da formação dos fundos de propriedade e os antecedentes da execução patrimonial. Demonstra-se também que o procedimento da bonorum venditio, costumeiramente ligado ao período clássico do direito romano, não foi exatamente substituído pela bonorum distractio, pois esta fazia, de certa forma, parte daquela. Com isso se procura comprovar que a atuação do curator, especialmente a que tinha por fim evitar a ruína do devedor, modificou os rumos da execução e do concurso de credores, inclusive de como se os conhecem ainda hoje. Em proposição aparentemente inédita, demonstrar-se-á que a mudança de enfoque dos modelos executivos posteriores às implicações de cunho fisico contra a pessoa...

Sale-Backs in Bankruptcy

Povel, Paul; Singh, Rajdeep
Fonte: Oxford University Press Publicador: Oxford University Press
Tipo: Artigo de Revista Científica Formato: text/html
Português
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45.92%
When bankrupt firms are sold, they are often repurchased by their former owner or manager. These insiders are by default better informed than outsiders about the true value of the firm or its assets, so other potential buyers must worry about overpaying if they win. The presence of insiders may thus have a chilling effect on the bidding. We ask how insiders should be treated in bankruptcy sales: Should they be allowed to submit bids? If so, under what conditions? We derive properties of an optimal sale procedure and show that it must be biased against insiders. Specifically, it should be harder for insiders to win with low bids than for outsiders. We show that the “market tests” that are routinely required in bankruptcy sales are suboptimal since they treat all potential buyers alike and forgo the benefits of biasing the procedure against insiders.

“No Way Out” : The Lack of Efficient Insolvency Regimes in the MENA Region

Uttamchandani, Mahesh
Fonte: Banco Mundial Publicador: Banco Mundial
Português
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46.38%
This paper provides a comparative summary of the payout phase of insolvency systems in the MENA Region. Countries in the region generally have weaker restructuring and liquidation systems than those in most other regions. The paper summarizes many of the weaknesses common across the region.

Increasing Access to Credit through Reforming Secured Transactions in the MENA Region

Alvarez de la Campa, Alejandro
Fonte: Banco Mundial Publicador: Banco Mundial
Português
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36.21%
This paper provides a comparative summary of secured transactions systems related to the use of movable property as collateral in the MENA region vis a vis international practices in countries with modern secured transactions systems. The paper sets out the importance of introducing reforms in the area of secured transactions with the objective of increasing access to credit for businesses, particularly SMEs. The MENA region clearly lags behind all other regions in the introduction of secured transactions reforms. The paper summarizes many of the weaknesses common across the region. The two main critical areas that need urgent reforms are the creation of modern secured transactions laws and electronic movable collateral registries, and the need to improve enforcement mechanisms for security interests in movable property.

Managing Subnational Credit and Default Risks

Waibel, Michael; Liu, Lili
Fonte: Banco Mundial Publicador: Banco Mundial
Português
Relevância na Pesquisa
46.32%
As a result of worldwide decentralization, subnational debt is rising. Subnational debt crises in major developing countries in the 1990s have led to strengthened regulatory frameworks for subnational borrowing and insolvency. With the fragility of the global recovery and increasing public debt, and the structural trends of decentralization and urbanization, it becomes more important to prudently manage subnational default risks. Although the regulatory frameworks share central features, the historical context and entry points for reform drive variations across countries. Addressing soft budget constraints is integral to the regulatory framework. Ex ante fiscal rules for subnational governments attempt to limit default risks; ex post regulation predictably allocates default risk, while providing breathing space for orderly debt restructuring and fiscal adjustment, as well as the continued delivery of essential public services. The regulatory reforms are inseparable from the reform of broader intergovernmental fiscal systems and financial markets.

The Challenges of Bankruptcy Reform

Cirmizi, Elena; Klapper, Leora; Uttamchandani, Mahesh
Fonte: Banco Mundial Publicador: Banco Mundial
Português
Relevância na Pesquisa
46.41%
The 2008 financial crisis was followed by a global economic downturn, credit crunch, and reduction in cross-border lending, trade finance, remittances, and foreign direct investment, which adversely affected businesses around the world. The consequent increase in the number of firm insolvencies in the financial and corporate sectors highlights the importance of efficient bankruptcy laws. This paper summarizes the theoretical and empirical literature on bankruptcy design, discusses the challenges of introducing and implementing bankruptcy reforms, and presents examples of how policymakers are trying to use the current economic downturn as an opportunity to engage in meaningful reform of the bankruptcy process.

Do Reorganization Costs Matter for Efficiency? Evidence from a Bankruptcy Reform in Colombia

Giné, Xavier; Love, Inessa
Fonte: World Bank, Washington, DC Publicador: World Bank, Washington, DC
Português
Relevância na Pesquisa
36.21%
The authors study the effect of reorganization costs on the efficiency of bankruptcy laws. They develop a simple model that predicts that in a regime with high costs, the law fails to achieve the efficient outcome of liquidating unviable businesses and reorganizing viable ones. The authors test the model using the Colombian bankruptcy reform of 1999. Using data from 1,924 firms filing for bankruptcy between 1996 and 2003, they find that the pre-reform reorganization proceeding was so inefficient that it failed to separate economically viable firms from inefficient ones. In contrast, by substantially lowering reorganization costs, the reform improved the selection of viable firms into reorganization. In this sense, the new law increased the efficiency of the bankruptcy system in Colombia.

Private Participation in Infrastructure in Developing Countries : Trends, Impacts, and Policy Lessons

Harris, Clive
Fonte: Washington, DC: World Bank Publicador: Washington, DC: World Bank
Português
Relevância na Pesquisa
45.68%
Governments have long recognized the vital role that modern infrastructure services play in economic growth and poverty alleviation. For much of the post-Second World War period, most governments entrusted delivery of these services to state-owned monopolies. But in many developing countries, the results were disappointing. Public sector monopolies were plagued by inefficiency. Many were strapped for resources because governments succumbed to populist pressures to hold prices below costs. Fiscal pressures, and the success of the pioneers of the privatization of infrastructure services, provided governments with a new paradigm. Many governments sought to involve the private sector in the provision and financing of infrastructure services. The shift to the private provision that occurred during the 1990s was much more rapid and widespread than had been anticipated at the start of the decade. By 2001, developing countries had seen over $755 billion of investment flows in nearly 2500 infrastructure projects. However...

Strategic Interactions and Portfolio Choice in Money Management : Evidence from Colombian Pension Funds

Pedraza Morales, Alvaro
Fonte: World Bank Group, Washington, DC Publicador: World Bank Group, Washington, DC
Português
Relevância na Pesquisa
45.91%
This paper studies the portfolio choice of strategic fund managers in the presence of a peer-based underperformance penalty. Evidence is taken from the Colombian pension fund management industry, where six asset managers are in charge of portfolio allocation for the mandatory contributions of the working population. These managers are subject to a peer-based underperformance penalty, known as the Minimum Return Guarantee. The trading behavior by the managers is studied before and after a change in the strictness of the guarantee in June 2007. The evidence suggests that a tighter minimum return guarantee results in more trading in the direction of peers, a behavior that is more pronounced for underperforming managers. These managers rebalance their portfolios by buying securities in which they are underexposed relative to their peers, as opposed to selling assets in which they are overexposed. Overall, the results suggest that incentives for managers to be close to industry benchmarks play an important role in the portfolio allocation of these funds.

The Use of Asset Management Companies in the Resolution of Banking Crises

Klingebiel, Daniela
Fonte: World Bank, Washington, DC Publicador: World Bank, Washington, DC
Tipo: Trabalho em Andamento
Português
Relevância na Pesquisa
36.15%
Asset management companies have been used to address the overhang of bad debt in the financial system. There are two main types of asset management company: those set up to expedite corporate restructuring and those established for rapid disposal of assets. A review of seven asset management companies reveals a mixed record. In two of three cases, asset management companies for corporate restructuring did not achieve their narrow goal of expediting bank or corporate restructuring, suggesting that they are not good vehicles for expediting corporate restructuring. Only a Swedish asset management company successfully managed its portfolio, acting sometimes as lead agent in restructuring - and helped by the fact that the assets acquired had mostly to do with real estate, not manufacturing, which is harder to restructure, and represented a small fraction of the banking systems assets, which made it easier for the company to remain independent of political pressures and to sell assets back to the private sector. Asset management companies used to dispose of assets rapidly fared somewhat better. Two of four agencies (in Spain and the United States) achieved their objectives...

Is the different treatment of corporate insolvency and personal bankruptcy under Australian law justified?

Brownbill, Conan
Fonte: Universidade Nacional da Austrália Publicador: Universidade Nacional da Austrália
Tipo: Relatório
Português
Relevância na Pesquisa
36.23%
The Australian corporate insolvency and personal bankruptcy regimes are separate. In recent ears, it has been suggested the two procedures should be merged. Those favouring merger believe it would increase efficiencies, reduce existing overlap and lessen costs. The benefits of a single insolvency regulator are noted as one particular benefit of merged insolvency legislation. Such arguments in support of merger underestimate the difficulties associated with unification given the tradition of separate insolvency laws within Australia and the terms of the Constitution. Significant costs would be associated with merging insolvency and bankruptcy legislation and the reduction of two governmental insolvency regulators to one. The Commonwealth may be unable o enact merged insolvency legislation that included all existing insolvency provisions given limitations within the Constitution. These limitations do not appear to have been addressed by those arguing in favour of merged insolvency procedures. The corporate insolvency and personal bankruptcy procedures have similar objectives and procedures. Both provide for the appointment of an independent entity to ascertain the debtor's abilities, realise their assets and distribute the proceeds among creditors. Further...

Enforceability of Labor Law : Evidence from a Labor Court in Mexico

Kaplan, David S.; Sadka, Joyce
Fonte: World Bank, Washington, DC Publicador: World Bank, Washington, DC
Tipo: Publications & Research :: Policy Research Working Paper; Publications & Research
Português
Relevância na Pesquisa
36.15%
The authors analyze lawsuits involving publicly-appointed lawyers in a labor court in Mexico to study how a rigid law is enforced. They show that, even after a judge has awarded something to a worker alleging unjust dismissal, the award goes uncollected 56 percent of the time. Workers who are dismissed after working more than seven years, however, do not leave these awards uncollected because their legally-mandated severance payments are larger. A simple theoretical model is used to generate predictions on how lawsuit outcomes should depend on the information available to the worker and on the worker's cost of collecting an award after trial, both of which are determined in part by the worker's lawyer. Differences in outcomes across lawyers are consistent with the hypothesis that firms take advantage both of workers who are poorly informed and of workers who find it more costly to collect an award after winning at trial.

Bankruptcy Around the World: Explanations of its Relative Use

Claessens, Stijn; Klapper, Leora F.
Fonte: World Bank, Washington, D.C. Publicador: World Bank, Washington, D.C.
Tipo: Publications & Research :: Policy Research Working Paper; Publications & Research
Português
Relevância na Pesquisa
36.21%
The recent literature on law and finance has drawn attention to the importance of creditor rights in influencing the development of financial systems and in affecting firm corporate governance and financing patterns. Recent financial crises have also highlighted the importance of insolvency systems to resolve corporate sector financial distress. The literature and crises have emphasized the complex role of creditor rights, affecting not only the efficiency of ex-post resolution of distressed corporations, but also influencing ex-ante risk-taking incentives and an economy's degree of entrepreneurship more generally. The authors document how often bankruptcy is actually being used for a panel of 35 countries. Next they investigate the effects of specific design features of insolvency regimes in relation to the quality of the countries' overall judicial systems on the use of bankruptcy. The authors find, correcting for overall financial development and macroeconomic shocks, that bankruptcies are higher in Anglo-Saxon countries and in market-oriented financial systems characterized by weaker and multiple banking relationships. They also find that greater judicial efficiency is associated with more use of bankruptcy...

Modernizing Italy's Bankruptcy Law

Vietti, Michele
Fonte: World Bank, Washington, DC Publicador: World Bank, Washington, DC
Tipo: Publications & Research :: Brief; Publications & Research
Português
Relevância na Pesquisa
36.11%
Reforming bankruptcy laws is difficult for many reasons. First of all, attitudes in Italy toward bankruptcy make it a difficult subject to generate support for. Secondly, bankruptcy reforms are complex and lengthy. They require changes not only to the bankruptcy law but also to other important parts of the legal framework, such as the codes of civil procedures and, in the case of Italy, the penal code. Finally, they require support from those that must implement them. This paper outlines the author experience in leading the commission for the reform of the bankruptcy law and the lessons learned from it.

Buildings Market Institutions in South Eastern Europe : Comparative Prospects for Investment and Private Sector Development

Broadman, Harry G.; Anderson, James; Claessens, Constantijn A.; Ryterman, Randi; Slavova, Stefka; Vagliasindi, Maria; Vincelette, Gallina A.
Fonte: Washington, DC: World Bank Publicador: Washington, DC: World Bank
Tipo: Publications & Research :: Publication; Publications & Research :: Publication
Português
Relevância na Pesquisa
45.81%
This report studies impediments to investment and private sector development in Albania, Bosnia and Herzegovina, Bulgaria, Croatia, the former Yugoslav Republic of Macedonia, Moldova, Romania, and Serbia and Montenegro. It aims to yield fundamentally new insights for improving the region's business environment, economic development, and prospects for growth. It focuses on four core topics: 1) Business competition and economic barriers to entry and exit; 2) Access to regulated utilities and services; 3) Corporate ownership, transparency of business accounts, and access to finance; and 4) Mechanisms for commercial dispute resolution. Each topic is empirically investigated across all eight South Eastern European countries through the systematic use of data from multiple sources: Official data from each country in the region; results from two annual rounds of quantitative, firm-level surveys covering 1,600 firms; and results from 40 originally developed enterprise-level business case studies. The result is an innovative analysis of cross-country comparisons and the development of key policy challenges from a regional perspective. The report ends by making concrete recommendations for reforms that would ease the constraints on domestic and foreign investment...

Collateral Registries for Movable Assets : Does Their Introduction Spur Firms' Access to Bank Finance?

Love, Inessa; Martínez Pería, María Soledad; Singh, Sandeep
Fonte: World Bank, Washington, DC Publicador: World Bank, Washington, DC
Tipo: Publications & Research :: Policy Research Working Paper; Publications & Research
Português
Relevância na Pesquisa
36.15%
Using firm-level surveys for up to 73 countries, this paper explores the impact of introducing collateral registries for movable assets on firms' access to bank finance. It compares firms' access to bank finance in seven countries that introduced collateral registries for movable assets against three control groups: firms in all countries that did not introduce a registry, firms in a sample of countries matched by location and income per capita to the countries that introduced registries for movable assets, and firms in countries that undertook other types of collateral reforms but did not set up registries for movable assets. Overall, the analysis finds that introducing collateral registries for movable assets increases firms' access to bank finance. There is also some evidence that this effect is larger among smaller firms.

Finance for All? Policies and Pitfalls in Expanding Access; Finanzas para todos? Politicas y trampas en la expansion del acceso

World Bank
Fonte: Washington, DC Publicador: Washington, DC
Tipo: Publications & Research :: Publication; Publications & Research :: Publication
Português
Relevância na Pesquisa
45.96%
This book, finance for all, presents first efforts at developing indicators illustrating that financial access is quite limited around the world and identifies barriers that may be preventing small firms and poor households from using financial services. Based on this research, the report derives principles for effective government policy on broadening access. The report's conclusions confirm some traditional views and challenge others. For example, recent research provides additional evidence to support the widely-held belief that financial development promotes growth and illustrates the role of access in this process. Improved access to finance creates an environment conducive to new firm entry, innovation, and growth. However, research also shows that small firms benefit the most from financial development and greater access-both in terms of entry and seeing their growth constraints relaxed. Hence, inclusive financial systems also have consequences for the composition and competition in the enterprise sector. This report reviews and synthesizes a large body of research...

Company in Distress?; Directors Needn't Be--Mitigating Risks at the Board

Rechden, Claudio N.; Miller, Kalina B.
Fonte: International Finance Corporation, Washington, DC Publicador: International Finance Corporation, Washington, DC
Tipo: Brief; Publications & Research; Publications & Research :: Brief
Português
Relevância na Pesquisa
46.03%
Investors see value in nominating members to the boards of companies they have invested in. Through board members, they can help improve the company's operations, define corporate strategy, adjust inefficiencies, improve governance, and ultimately increase the expected return on their investment. The authors examine the shift in the relative position of stakeholders when a company enters the penumbra of insolvency. In good times, directors rightly think of the shareholders as the parties to whom their duties to the company (and legal responsibilities) most directly extend. But once the enterprise s very survival as a going concern comes into question, the profile and legal rights of creditors and other stakeholders take on greater importance. The board must be able to demonstrate that it is doing everything it can to maximize the enterprise value of the company, and hence the likelihood that the company will meet its obligations to parties with claims (on the cash flow and assets of the company) that come before the residual interest of shareholders. This paper lists other actions (including...

Subnational Insolvency : Cross-Country Experiences and Lessons

Liu, Lili; Waibel, Michael
Fonte: Banco Mundial Publicador: Banco Mundial
Tipo: Publications & Research :: Policy Research Working Paper; Publications & Research
Português
Relevância na Pesquisa
46.33%
Subnational insolvency is a reoccurring event in development, as demonstrated by historical and modern episodes of subnational defaults in both developed and developing countries. Insolvency procedures become more important as countries decentralize expenditure, taxation, and borrowing, and broaden subnational credit markets. As the first cross-country survey of procedures to resolve subnational financial distress, this paper has particular relevance for decentralizing countries. The authors explain central features and variations of subnational insolvency mechanisms across countries. They identify judicial, administrative, and hybrid procedures, and show how entry point and political factors drive their design. Like private insolvency law, subnational insolvency procedures predictably allocate default risk, while providing breathing space for orderly debt restructuring and fiscal adjustment. Policymakers' desire to mitigate the tension between creditor rights and the need to maintain essential public services...