Este trabalho propõe-se a analisar os mútuos como direitos creditórios dos sócios das sociedades limitadas e dos acionistas das sociedades anônimas na legislação nacional e o tratamento dado pela legislação falimentar brasileira a esses direitos de crédito, à luz dos mesmos conceitos existentes no Direito Comparado, especificamente na Alemanha e nos Estados Unidos da América. A eleição dos referidos dois países para a análise do Direito alienígena justifica-se porque: (i) a Lei de Insolvência Alemã (Insolvenzordnung InsO), de 5.10.1994, em vigor desde 1.1.1999 e editada em substituição à antiga legislação datada de 1877, que previa os institutos da falência e concordata de forma muito semelhante ao sistema falimentar brasileiro do Decreto-lei nº 7.661, de 21.6.1945 (Decreto-lei 7.661/45), veio a regulamentar os institutos da recuperação e liquidação de empresas, com objetivos também muito semelhantes aos da Lei nº 11.101, de 9.2.2005 (Lei de Recuperação de Empresas e Falências), tendo ainda passado por recente reforma em novembro de 2008; (ii) o Bankruptcy Code, que compõe o Título 11 do United States Code, em vigor desde a reforma inserida no sistema concursal norte-americano por meio do Bankruptcy Reform Act of 1978...
A tese parte da análise jurídica do concurso das sociedades cooperativas para abordar as disciplinas concursais de insolvência civil, recuperação de empresas e falência, bem como as normas de liquidação aplicáveis às cooperativas no direito brasileiro e comparado. O direito concursal hodierno dispõe de mecanismos recuperativos em caso de crise financeira, e liquidatórios, com normas que primam pela eficiência dos institutos do direito concursal e pela continuação da atividade produtiva, com o fim de beneficiar o credor, devedor e a coletividade. Tende-se a adotar o princípio de unidade legal, de sistema e de disciplina, com pressuposto subjetivo unificado, abrangendo todos os devedores, inclusive as sociedades cooperativas, que quando organizadas como empresas são empresárias de economia social, com natureza jurídica e estrutura que beneficiam a coletividade. O Brasil não adota o princípio da unidade, nem reconhece as sociedades cooperativas como empresas, com a exclusão das cooperativas da lei de recuperação e falências, o que fere as orientações internacionais de incentivo e de tratamento não discriminatório às sociedades cooperativas e surge como mais um obstáculo ao seu desenvolvimento no Brasil. Este estudo teórico-descritivo subdivide-se em três capítulos: o primeiro aborda a doutrina e a normativa do direito concursal com enfoque na sociedade cooperativa...
Debtors seeking to file bankruptcy may do so under either Chapter 7 or Chapter 13 of the Bankruptcy Code. In either case, the bankruptcy system must determine what expenses will be allowed for the debtor in bankruptcy, including for substances such as food, drugs, and cigarettes. This paper examines the treatment of these three substances by the Bankruptcy Code and judges, based on the three standards that appear in the Code: (1) what is allowed by the IRS National Standards, (2) what would constitute “abuse” of the system, and (3) what expenses are “reasonably necessary.” We then discuss five adverse effects that result from these provisions, including horizontal inequities between Chapter 7 and Chapter 13, unfair geographical variations, vertical inequities between wealthier and poorer debtors, inconsistent judicial application of the rules, and inconsistency between the bankruptcy regime and other federal agencies and priorities.
Fonte: Harvard UniversityPublicador: Harvard University
Tipo: Paper (for course/seminar/workshop)
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The Bankruptcy Code exempts financial derivatives and repurchase agreements from key provisions, such as the automatic stay. The primary rationale for this special treatment has been the fear that the failure of an important market participant could cascade if counterparties could not immediately exit their contracts. Reflecting on the recent financial crisis and the Lehman bankruptcy, some scholars have suggested that exempting these financial contracts from bankruptcy may have exacerbated other kinds of systemic risk and contributed to the decision to bail out systemically important financial institutions (SIFIs) address this flaw by enacting a Bankruptcy alternative, Title II of the Dodd-Frank Act, instead of addressing the problems in the Bankruptcy Code safe harbors that were the source of the systemic risk. This article demonstrates that the view that Title II replaces bankruptcy reform is mistaken. Title II actually increases both the need and opportunity to reassess the proper limits of the safe harbors.
Without bankruptcy reform, the threat of irreversible damage if the SIFI files bankruptcy before intervention may force Title II to compete with bankruptcy in order to reach potential SIFIs first. However, the difficulty in evaluating whether some firm failures involve systemic risk incentivizes Title II decisionmakers to intervene in cases of doubt...
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.
An efficient bankruptcy system should liquidate nonviable businesses and reorganize viable ones. The importance of this filtering process has long been recognized in the literature; the typical reason advanced for its failure has been biases (in codes or among judges). In this paper we show that bankruptcy costs can be another source of such filtering failure. We illustrate this with the Colombian reform of 1999. Using data from 1,924 firms filing for bankruptcy between 1996 and 2003, we find that the prereform reorganization proceedings were so inefficient that the bankruptcy system failed to separate economically viable firms from inefficient ones. In contrast, by streamlining the reorganization process, the reform contributed to the improvement of the selection of viable firms into reorganization. In this sense, the new law increased the efficiency of the bankruptcy system in Colombia.
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.
The current financial crisis has pushed
many firms to the brink of bankruptcy. A key policy question
is thus whether bankruptcy laws are efficient, in the sense
of allowing better firms to reorganize while liquidating
unviable firms. The sixth in impact series presents lessons
from a reform in Colombia that achieved this objective.
The 2008 financial crisis and consequent
rise in corporate insolvencies highlight the clear need for
efficient bankruptcy systems to liquidate unviable firms and
reorganize viable ones and to do so in a way that maximizes
the proceeds for creditors, shareholders, employees, and
other stakeholders. This note summarizes the empirical
literature on the effect of insolvency reforms on economic
and financial activity. Overall, research suggests that
effective reforms increase timely repayments, reduce the
cost of credit, and lower the rate of liquidation among
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...
The Bank of Lithuania (BoL), the Central
Bank, was established in 1990. BoL has the exclusive right
to grant and revoke licenses to local and foreign banks and
to supervise their activities. Private commercial banking
boomed from 1991 to 1994 while bank regulation was lax. In
late 1995, a bank crisis caused failures of most of the
Lithuanian banks, and the remaining banks resulted in better
managed and supervised institutions. BoL also applied
tougher regulation on the banking sector. All commercial
banks now need to have their financial records audited every
year by an international auditing firm. This report includes
the following headings: risks and contingency crisis
management in the Lithuanian banking system; credit risk and
regulatory issues; and description of corporate debt
restructuring procedures in Lithuania.
A well-functioning legal framework for
secured lending needs to provide for the creation,
recognition and enforcement of security interests. This
includes making it possible for all types of assets to be
collateralized, effective notice and registration rules to
be adapted to all types of property, and clear rules of
priority on competing claims or interests in the same
assets. This working paper includes the following headings:
procedure and costs for a secured transaction; registration
system; credit reference bureau; realization of collateral;
judicial framework; insolvency and corporate rehabilitation;
“Unfortunately, Stern v. Marshall has become the mantra of every litigant who, for strategic or tactical reasons, would rather litigate somewhere other than the bankruptcy court.”
Quite aptly, the United States Supreme Court borrowed the words of Charles Dickens to describe the life of the case that ultimately resulted in Stern v. Marshall : “This suit has, in the curse of time, become so complicated, that . . . no two . . . lawyers can talk about it for five minutes, without coming to a total disagreement as to all the premises.’” Ironically, even after the Court’s decision, the “curse” has continued and many, especially those of the bankruptcy bar, are in disagreement as to the ultimate outcome and unforeseen consequences of Stern.
The “big fuss” arose out of the Court’s holding that bankruptcy courts do not have constitutional authority to enter final judgment on a state law counterclaim “that is not resolved in the process of ruling on a creditor’s proof of claim.” The Court stated that common law claims, as well as suits in equity and admiralty, fall within the province of Article III courts, and Congress cannot “chip away at the authority of the judicial branch” by enacting statutes delegating such power to non-Article III judges. The Constitution grants judicial power to courts whose judges enjoy tenure during good behavior and salary protections.
Article III provisions are safeguards against intrusion by other branches of government and they ensure that judicial decisions are being made with “[c]lear heads . . . and honest hearts.” A different outcome would have been likely if the case involved a ‘public right’ because the Court has recognized that Congress has the authority to adjudicate in suits involving that exception. The public rights exception applies in cases where a “right is integrally related to particular federal government action.”
Other than the obvious limiting effect that Stern will have on bankruptcy courts with regards to adjudicating common law claims...
While there is a vast literature on optimal bankruptcy laws and, specifically, on the optimal
allocation of control rights between debtors and creditors in corporate bankruptcy, little has been
said about the role that alternative insolvency institutions may play in the design of the optimal
insolvency framework. This paper attempts to fill this gap by modelling two insolvency institutions
-a bankruptcy system and a foreclosure system- that firms and their creditors may use when dealing
with financial distress. Firms choose between one or the other based on lenders’ willingness to
provide credit and the trade-off between two inefficiency costs, those from inefficient liquidations
and those from productive inefficiencies caused by overinvestment in capital assets. The model’s
key result is that welfare is a non-monotonic function of creditor control rights in bankruptcy,
implying that a perfectly “creditor-friendly” bankruptcy code (a code that always grants control
of the distressed firms to creditors) is very inefficient. A second result is that welfare is higher
when the bankruptcy system is too “creditor-friendly” (i.e., it ensures the provision of credit, but
generates too many inefficient liquidations) than when it is too “debtor-friendly”. Hence...
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...
Many private infrastructure projects mix
regulation that subjects the private company to considerable
risk, a government or regulator that is reluctant to see the
company go bankrupt, and high leverage on the part of the
company. If all goes well, equityholders make a profit,
debtholders are repaid, customers pay no more than they
expected, and the government is not called on to bail the
company out. If all goes badly enough, however, the prospect
of bankruptcy will loom. Unwilling to see the company go
bankrupt, however, the regulator will have to permit an
unscheduled price increase, or the government will have to
inject taxpayers' money into the firm. In other words,
the combination means customers and taxpayers bear more risk
than would appear from the regulations governing the private
infrastructure project. The authors examine how these
problems have played out in five cases. Then they describe
how governments and regulators can quantify the extent of
the problems and, using option-pricing techniques, value the
customer and taxpayer guarantees involved. Finally...
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.
Did the U.S. government's
intervention in the Chrysler reorganization overturn
bankruptcy law? Critics argue that the government-sponsored
reorganization impermissibly elevated claims of the auto
union over those of Chrysler's other creditors. If the
critics are correct, businesses might suffer an increase in
their cost of debt because creditors will perceive a new
risk, that organized labor might leap-frog them in
bankruptcy. This paper examines the financial market where
this effect would be most detectible, the market for bonds
of highly unionized companies. The authors find no evidence
of a negative reaction to the Chrysler bailout by
bondholders of unionized firms. They thus reject the notion
that investors perceived a distortion of bankruptcy
priorities. To the contrary, bondholders of unionized firms
reacted positively to the Chrysler bailout. This evidence
suggests that bondholders interpreted the Chrysler bailout
as a signal that the government will stand behind unionized
firms. The results are consistent with the notion that
too-big-to-fail government policies generate moral hazard in
the credit markets.
Many developing countries suffer from
logjam in the courts, a condition that tends to reduce the
effectiveness of bankruptcy law in relieving financial
distress. Colombia's bankruptcy reform provides some
useful lessons for these countries. In particular, it shows
that when traditional court procedures are hard to change,
an alternative is to legally empower another entity to
handle the entire process. The author explains how it was
done in Colombia.
Esta tese é composta por três ensaios sobre o mercado de crédito e as instituições que regem bancarrota corporativa.
No capítulo um, trazemos evidências que questionam a ideia de que maiores níveis de proteção ao credor sempre promovem desenvolvimento do mercado de crédito. Desde a publicação dos artigos seminais de La Porta et al (1997,1998), a métrica de proteção ao credor que os autores propuseram -- o índice de proteção ao credor -- tem sido amplamente utilizada na literatura de Law and Finance como variável explicativa em modelos de regressão linear em forma reduzida para determinar a correlação entre proteção ao credor e desenvolvimento do mercado de crédito. Neste artigo, exploramos alguns problemas com essa abordagem. Do ponto de vista teórico, essa abordagem geralmente supõe uma relação monotônica entre proteção ao credor e expansão do crédito. Nós apresentamos um modelo teórico para um mercado de crédito com seleção adversa em que um nível intermediário de proteção ao credor é capaz de implementar equilíbrios first best. Este resultado está de acordo com diversos outros artigos teóricos, tanto em equilíbrio geral quanto em equilíbrio parcial. Do ponto de vista empírico...