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A recuperação judicial no Brasil: governança, financiamento extraconcursal e votação do plano; Judicial corporate reorganization in Brazil: governance, post-petition financing and voting in plan

Kirschbaum, Deborah
Fonte: Biblioteca Digitais de Teses e Dissertações da USP Publicador: Biblioteca Digitais de Teses e Dissertações da USP
Tipo: Tese de Doutorado Formato: application/pdf
Publicado em 05/05/2009 Português
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46.78%
Esta tese trata de três questões fundamentais do instituto da recuperação judicial de empresas no Brasil, inaugurado pela Lei 11.101 de 2005: (i) a relação entre governança corporativa e o regime aplicável à insolvência empresarial; (ii) o financiamento à empresa em recuperação judicial e (iii) a negociação e votação do plano de recuperação. O estudo integra a Teoria de Finanças Corporativas ao Direito tanto para discutir as questões propostas sob uma perspectiva normativa, como para propor uma abordagem de construção dogmática. A pesquisa busca avaliar em que medida a recuperação judicial se adapta à realidade brasileira, considerando as relações entre o regime aplicável à insolvência e os padrões de financiamento e de governança corporativa observados quanto às empresas de médio e grande portes no Brasil. Quanto ao financiamento à empresa em recuperação judicial, a tese defende uma interpretação da lei segundo a qual somente devam ser autorizados empréstimos com potencial de melhorar a capacidade financeira da devedora, sem expropriar valor dos credores. A tese ainda propõe modificação da lei para aprimorar os procedimentos de análise e decisão quanto à tomada de financiamento pela devedora durante a recuperação judicial. No que diz respeito à votação do plano de recuperação...

“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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47.01%
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.

Corporate Restructuring : Lessons from Experience

Pomerleano, Michael; Shaw, William
Fonte: Washington, DC: World Bank Publicador: Washington, DC: World Bank
Português
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47.06%
In the wake of the periodic financial crises of the late 1990s, the international financial institutions and many experts have recognized the need for a strategy to avoid and mitigate the severity of crises in the corporate sector. Addressing this problem requires the complementary efforts of policymakers, regulators, lawyers, insolvency experts, corporate restructuring specialists, and financiers. What are the roots of corporate distress? Can systemic corporate crises be predicted? What is the role of legal frameworks in preventing and coping with a crisis? What are the most effective financial techniques for dealing with distressed corporate organizations? This volume takes a multidisciplinary perspective on corporate restructuring, and examines international experiences in dealing with corporate crises.

Innovations in Bankruptcy—Pricing the Priority of Insolvency Claims

Leechor, Chad
Fonte: World Bank, Washington, DC Publicador: World Bank, Washington, DC
Português
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37.05%
Following the wave of recent financial turmoil, many developing countries have learned the value of an effective bankruptcy system in deterring excessive use of debt and providing an orderly way to resolve a debt crisis. As a result, they are now reforming their bankruptcy systems, generally modeling them on those of advanced countries. But there is dissatisfaction with bankruptcy frameworks in advanced countries too. Some alternatives have been proposed. One is an options-based approach that provides an objective way of pricing creditor claims according to priority. With allowances for local conditions, this approach offers developing countries a chance to leapfrog existing bankruptcy practices and their limitations. Effective bankruptcy systems have implications for corporate governance and for securities markets. For corporate managers and controlling shareholders, the cost of bankruptcy includes the loss of corporate control and the risk of personal liability. This threat serves as a restraint on the use of debt. In the event of default an efficient and orderly transfer of corporate control to creditors reduces the likelihood of asset stripping and looting by insiders. For creditors...

Pakistan - Strengthening the Insolvency Regime : Non-Lending Technical Assistance Final Report

World Bank
Fonte: Washington, DC Publicador: Washington, DC
Português
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The importance of a modern, binding and effective insolvency regime is undeniable. Nearly 90 countries around the world have reformed their bankruptcy codes since Second World War, and over half of them have done so during the last decade. One of the key aspects in the reform process is the delicate balance addressed by a modern insolvency system which encourages the organization of viable firms and liquidates unviable firms. The financial and macroeconomic crises, as recently experienced in Pakistan, provide an opportunity for bankruptcy reform, as the potential employment impact often places the issue of insolvent companies high on the policy agenda. The three fundamental goals of any insolvency law are: 1) transparency, including a system for publicizing and indexing judgments, an accessible method for registering securing interest and an effective notice of insolvency proceedings, 2) predictability - in terms of being fair, simple and clear, which if not achieved ends up costing more as financial institutions compensate the uncertainty with additional credit costs; and 3) efficiency...

European and Best Practice Bank Resolution Mechanisms : An Assessment and Recommendations for Policy and Legal Reforms

World Bank
Fonte: Washington, DC Publicador: Washington, DC
Português
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The process of bank resolution, or the procedure for handling insolvency of banks using a range of tools, including alternatives to standard bankruptcy processes, has gained major traction since the experience of the 2008-09 financial crisis. In this context, this report reviews models for bank resolution that provide increased flexibility and describes several of the supervisory, legal and instrumental tools that can be used under modernized bank resolution procedures. As well, it looks at the recent European Commission proposals on this matter which take into account international best practices experiences. It also highlights areas of reform and areas where further regulatory considerations and priorities should be considered. The report reviews the bank resolution regimes of a group of European countries as well as those of two non-EU countries to highlight advantages as well as gaps in the legal and regulatory frameworks. This report surveys the banking and deposit insurance laws of six European countries : Poland...

Argentina : Insolvency and Creditor Rights Systems

World Bank
Fonte: Washington, DC Publicador: Washington, DC
Português
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In 1995, Argentina enacted a new modern insolvency law that substantially improved corporate liquidations and rehabilitations. After almost seven years of experience, some legal and institutional weaknesses persist: (1) corporate workouts are difficult in practice; (2) the unified insolvency regime causes severe problems in judicial interpretation of many legal provisions, causing court congestion with insolvency cases; (3) an uneven playing field discourages rehabilitation; (4) a lack of insolvency specialization among judges impedes efficiency and uniformity in large commercial centers; and (5) sindicos are perceived as lacking objectivity and sufficient expertise to manage complex restructurings. Liquidation proceedings take 1-5 years (depending on complexity), while reorganizations average 1½-2 years in jurisdictions with specialized judges (Mendoza, Cordoba) and 2-3 years in the others. To immediately improve the system, a new workout mechanism should be introduced to deal with systemic levels of corporate distress. In the medium term...

Mauritius : Insolvency and Creditor Rights Systems

World Bank
Fonte: Washington DC Publicador: Washington DC
Português
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47.02%
The Bank assessed the Mauritius insolvency and creditor rights systems pursuant to a joint IMF-World Bank initiative to develop reports on the observance of standards and codes ("ROSC"), based on the Bank Principles and Guidelines for Effective Insolvency and Creditor Rights Systems during 2002. The assessment team interviewed a cross section of country stakeholders regarding the effectiveness of the legal infrastructure, and its implementation supporting debtor-creditor relationships, corporate insolvency and credit risk management and resolution practices. Conclusions in this assessment are based largely on a review of applicable legislation and information gathered through interviews conducted by the staff team, and other inputs provided by the Steering Committee on Insolvency and Creditor Rights set up by the Government of Mauritius in January 2003. In addition, five commercial banks provided responses pertaining to credit risk management and corporate recovery practices with respect to distressed assets. Policy recommendations include: creditors rights and enforcement areas...

Valoración económica de la eficiencia de los sistemas concursales: un análisis empírico internacional.; Economic valuation of the efficiency of bankruptcy systems: an international empirical analysis.

López Gutiérrez, Carlos; García Olalla, Myriam; Torre Olmo, María Begoña
Fonte: AECA Publicador: AECA
Tipo: info:eu-repo/semantics/article; publishedVersion
Português
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RESUMEN. La valoración que el mercado realiza de los problemas de insolvencia empresarial se ve condicionada por las características de la legislación concursal, siendo tradicional la distinción entre normativas orientadas a la protección del deudor o de los acreedores. Sin embargo, resulta necesario atender también al propósito perseguido con cada medida concreta establecida en la legislación para tratar de solucionar las difi cultades fi nancieras. En el presente trabajo se realiza una aproximación considerando los diferentes tipos de efi ciencia de la normativa concursal, el carácter antagónico que, en ocasiones, tienen entre sí, y la valoración que el mercado realiza de cada uno de ellos a través de un análisis internacional en los principales países de la Unión Europea.; ABSTRACT. The market valuation of corporate insolvency problems is conditioned by the attributes of bankruptcy laws, with different codes traditionally being oriented toward protecting the debtor or the creditor. Nevertheless, it is also necessary to address the objective of each concrete measure established in the legislation to try to resolve fi nancial distress. This study carries out an approximation, taking into account the different types of effi ciency in bankruptcy regulations...

Moldova Financial Sector Assessment Program; Insolvency and Creditor/Debtor Regimes--Report on the Observance of Standards and Codes

World Bank
Fonte: Washington, DC Publicador: Washington, DC
Tipo: Report; Economic & Sector Work :: Financial Sector Assessment Program; Economic & Sector Work
Português
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The World Bank assessed the insolvency and creditor or debtor regimes (ICR) of Moldova pursuant to the joint international monetary fund (IMF) and World Bank initiative on the observance of standards and codes (ROSC). The Moldovan authorities have made remarkable progress over the last decade in taking on board a broad range of reform related to the commercial law regime, including the laws pertaining to creditor protection and insolvency. Loans are often over collateralized, reducing available credit and increasing the incentives for lenders to rely primarily on their collateral for repayment rather than to support restructuring efforts. The secured transactions regime requires improvement, importantly regarding the facilitation of important credit instruments over category of assets. The rules aimed at encouraging good corporate behavior at times of financial distress may be improved and obstacles on insolvency filing by creditors removed to ensure timely filing of insolvency proceedings. There are also certain risks to creditor rights...

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
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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...

Insolvency and Creditor Rights Systems : Czech Republic

Johnson, Gordon W.
Fonte: World Bank: Washington, DC Publicador: World Bank: Washington, DC
Tipo: Economic & Sector Work :: Insolvency Assessment (ROSC); Economic & Sector Work
Português
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46.83%
This report assesses the Czech Republic's insolvency and creditor rights systems pursuant to a joint International Monetary Fund-World Bank program to observe compliance with international standards and codes (ROSC) in areas pivotal to a country's financial sector stability and market integrity. This particular assessment is based on the World Bank Principles and Guidelines for Effective Insolvency and Creditor Rights Systems (Principles), and reviews compliance in four key areas: (i) creditor rights (including secured transactions) and enforcement procedures; (ii) the legal framework for corporate insolvency; (iii) the regulatory framework to implement the insolvency system, and (iv) the enabling framework for credit risk management and informal corporate workouts. These systems constitute an essential cornerstone of commercial confidence and the bedrock for sound credit management and resolution. The conclusions in this assessment are based on a review of the Bankruptcy and Composition Act, the laws dealing with the creation...

Slovak Republic : Insolvency and Creditor Rights Systems

World Bank
Fonte: Washington, DC Publicador: Washington, DC
Tipo: Economic & Sector Work :: Insolvency Assessment (ROSC); Economic & Sector Work
Português
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46.79%
The assessment team interviewed a cross section of country stakeholders regarding the effectiveness of the legal infrastructure, and its implementation supporting debtor-creditor relationships, corporate insolvency and credit risk management, and resolution practices, including among others, members of the Inter-Agency Commission for the preparation of a new insolvency law, and members of the drafting team for the new collateral law; and, various professionals serving as trustees, executors, lawyers and accountants also provided their input. The conclusions in this assessment are based largely on the above interviews, a review of applicable legislation, data and information, various reports prepared by the Bank between 1999-2001, and other reports or analyses pertaining to the areas assessed, including the project on the new collateral legislation, and registration system for pledges (charges). Some laws unavailable in English at the time were discussed in a number of meetings with institutions, and professionals in the public...

Colombia : Creditor Rights and Insolvency Proceedings; Colombia - Derechos de credito y procesos concursales

Rouillon, Adolfo
Fonte: World Bank, Washington, DC Publicador: World Bank, Washington, DC
Tipo: Economic & Sector Work :: Law and Justice Study; Economic & Sector Work
Português
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47.15%
This article analyzes the legislation and institutions connected with creditor rights and insolvency proceedings in Colombia. It aims to contribute to the debate on the conditions required to restore the vitality of the Colombian credit environment. In relation to creditor rights, there is a particular emphasis on mechanisms for establishing security interests used in granting corporate credit. The analysis identifies the principal factors affecting the efficiency of security interests. These include deficiencies in substantive and procedural law, as well as in registry organization. The paper goes on to analyze the legal, institutional and regulatory framework for insolvency proceedings, identifying weaknesses and highlighting strengths that insolvency reforms should aim to preserve. The need for attention to corporate workouts and prepackaged reorganization agreements is also addressed. The paper concludes with prioritized recommendations for a plan of legal and institutional reform intended to improve the credit environment, creditor protection and enable the establishment of a more balanced insolvency system. Applying the recommendations to Senate Bill 207/05 (Insolvency Regime) makes it possible to identify the strengths of the Bill...

Financial Sector Assessment : Kenya

World Bank
Fonte: Washington, DC Publicador: Washington, DC
Tipo: Economic & Sector Work :: Financial Sector Assessment Program (FSAP); Economic & Sector Work
Português
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46.54%
This Financial Sector Assessment (FSA) is based on the work of the joint International Monetary Fund (IMF)- World Bank missions that visited Kenya from July 15 to July 24,2003, and from September 30 to October 15, 2003, in the context of the Financial Sector Assessment Program (FSAP). The principal objective of the missions was to assist the Kenyan authorities in assessing the development needs and opportunities for the financial sector and identifying potential vulnerabilities of financial institutions and markets to macroeconomic shocks, as well as the risks to macroeconomic stability from weaknesses and shortcomings in the financial sector. In this context, Kenya's compliance with the Basel core principles for Effective Banking Supervision (BCP); International Organization of Securities Commissions (IOSCO) principles for securities regulation; and corporate insolvency and creditor rights issues was formally assessed. A separate mission to assess Anti-Money Laundering (AML) or Combating the Financing of Terrorism (CFT) took place in October and November 2003; the Report on Observance of Standards and Codes (ROSC) from that mission is included in the FSAP documentation.

Corporate Governance and Bank Insolvency Risk : International Evidence

Anginer, Deniz; Demirguc-Kunt, Asli; Huizinga, Harry; Ma, Kebin
Fonte: World Bank Group, Washington, DC Publicador: World Bank Group, Washington, DC
Tipo: Publications & Research :: Policy Research Working Paper; Publications & Research
Português
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This paper finds that shareholder-friendly corporate governance is positively associated with bank insolvency risk, as proxied by the Z-score and the Merton's distance to default measure, for an international sample of banks over the 2004-08 period. Banks are special in that "good" corporate governance increases bank insolvency risk relatively more for banks that are large and located in countries with sound public finances, as banks aim to exploit the financial safety net. Good corporate governance is specifically associated with higher asset volatility, more nonperforming loans, and a lower tangible capital ratio. Furthermore, good corporate governance is associated with more bank risk-taking at times of rapid economic expansion. Consistent with increased risk-taking, good corporate governance is associated with a higher valuation of the implicit insurance provided by the financial safety net, especially in the case of large banks. These results underline the importance of the financial safety net and too-big-to-fail policies in encouraging excessive risk-taking by banks.

Corporate Governance Country Assessment : Moldova

World Bank
Fonte: Washington, DC Publicador: Washington, DC
Tipo: Economic & Sector Work :: Corporate Governance Assessment (ROSC); Economic & Sector Work
Português
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36.95%
This report provides an assessment of Moldova's corporate governance framework-its legal and policy framework, as well as enforcement and compliance practices. The report makes policy recommendations where appropriate, and provides investors with a benchmark to compare corporate governance with the 1999 OECD Principles of Corporate Governance. Moldova is beginning to upgrade its legal and regulatory framework to meet international corporate governance standards. The report suggests that the main challenges will be to: (1) strengthen the legal requirements for shareholders to disclose their ultimate ownership and control positions, remove the authority of boards to increase capital without shareholder approval; establish clear liability and duties for board members, and require annual independent audits for joint stock companies; (2) increase the resources available to the NSC, and focus its enforcement efforts on transparency and disclosure, especially the disclosure of ownership, and the NSC's own transparency and accountability; (3) draft a corporate governance code to build awareness of corporate governance and to further clarify the responsibilities of the board; and (4) establish a training program on corporate governance to assist in building a shareholder culture in Moldova.

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
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47.15%
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...

A Global View of Business Insolvency Systems

Westbrook, Lawrence; Booth, Charles D.; Paulus, Christoph G.; Rajak, Harry
Fonte: Washington, DC: World Bank and Brill Publicador: Washington, DC: World Bank and Brill
Tipo: Publications & Research :: Publication; Publications & Research
Português
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57.29%
The purpose of this book is to provide a coherent overview of the insolvency systems found around the world. Its intended audience includes academics, judges, lawyers, and policymakers. Its focus is on businesses rather than natural persons. The authors hope to give the reader a sense of some of the principal approaches to managing the general default of a business debtor. The authors will discuss the nature of the costs and benefits arising from the various policy choices legislators have made. In the process, they will emphasize the close interrelationship among various elements of an insolvency regime so that these elements can be viewed as part of an overall system and not just as a series of policy decisions about particular rules, such as the method of initiation of an insolvency case or the balance struck in setting the boundaries of an avoidance power. The organization of the book reflects our view of insolvency laws as complete systems, including not only the 'insolvency' or 'bankruptcy' code of a jurisdiction but also closely related laws and the institutional framework in which those laws are applied. The book takes a systematic approach to a variety of topics related to credit and insolvency regulation. The functional analysis starts with the study of debt enforcement...

Principles for Effective Insolvency and Creditor-Debtor Rights Systems, Revised 2015

World Bank
Fonte: World Bank, Washington, DC Publicador: World Bank, Washington, DC
Tipo: Report; Economic & Sector Work; Economic & Sector Work :: Insolvency Assessment
Português
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47.24%
Effective creditor/debtor rights and insolvency systems are an important element of financial system stability. The World Bank Group accordingly has been working with partner organizations to develop principles for insolvency and creditor/debtor rights systems. The Principles for Effective Insolvency and Creditor/Debtor Rights Systems (the Principles) are a distillation of international best practice on design aspects of these systems, emphasizing contextual, integrated solutions and the policy choices involved in developing those solutions.Based on the experience gained from the use of the Principles, and following extensive consultations, the publication has been thoroughly reviewed and updated in 2005, 2011 and 2015. The revised Principles contained in this document have benefited from wide consultation and, more importantly, from the practical experience of using them in the context of the Bank’s assessment and operational work.