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Article
Publication date: 6 April 2021

James Routledge

Amid the COVID-19 pandemic, it is important to consider the effectiveness of insolvency law given the increase in companies facing financial distress. Current insolvency

Abstract

Purpose

Amid the COVID-19 pandemic, it is important to consider the effectiveness of insolvency law given the increase in companies facing financial distress. Current insolvency law was not designed in the context of the unprecedented challenges of the pandemic. Therefore, it may not provide the framework needed to assist the rehabilitation of distressed companies that is important to economic recovery. The purpose of this paper is to briefly discuss the rethinking of insolvency law policy with a view to maximising opportunities for rescue and rehabilitation.

Design/methodology/approach

The commentary offers suggestions on how insolvency law can maximise opportunities for rehabilitation. The approach is to consider competing theoretical perspectives on the objective of insolvency law and provide commentary on rethinking key insolvency law provisions to better meet the needs of distressed businesses in the unprecedented circumstances of the pandemic and into the future.

Findings

This paper concludes that in the context of the pandemic insolvency policy that is value-based and debtor-friendly is needed to promote rehabilitation. Insolvency law should refocus on debtors and rehabilitation rather than being excessively focussed on the interest of creditors.

Originality/value

This paper offers a unique and timely commentary on the capacity of insolvency law to respond to the unforeseen COVD-19 pandemic.

Details

Pacific Accounting Review, vol. ahead-of-print no. ahead-of-print
Type: Research Article
ISSN: 0114-0582

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Book part
Publication date: 28 May 2013

Oliver Lukason

Purpose — The main aim of the paper is to study the occurrence and connections of different pre-insolvency violations of law on the example of Estonian…

Abstract

Purpose — The main aim of the paper is to study the occurrence and connections of different pre-insolvency violations of law on the example of Estonian firms.Design/methodology/approach — The study is based on the whole population financial data of Estonian bankrupt firms and all publicly available court judgments about firm insolvencies from the period 2002–2009. Three types of violations have been considered: non-submission of annual reports, violations of net asset requirement and elements of criminal offence.Findings — The paper shows that non-submission of annual reports is common for insolvent firms but its occurrence varies through insolvency years and types. A similar finding can be attributed to net asset requirement violations. Elements of criminal offence are also frequent, but their occurrence is not different through insolvency years, industries and firm size groups. Elements of criminal offence and net asset requirement violations are not likely to exist together. Although medians of several pre-insolvency financial variables are significantly different in case of firms where criminal offence elements were found, they are not useful for offence prediction.Research limitations/implications — Statistical analysis limitations of the current study are mainly associated with the content of the data, because the dataset itself covers the whole population of publicly available information. The application of some results in different countries might be limited because of differences in legislation and its implementation. The study outlines novel information about and connections of different pre-insolvency violations which could be applied for relevant theory-building or more elaborate empirical research in the future.Practical implications — The study can be used by managers, owners, creditors and other stakeholders of firms to improve detection of possible pre-insolvency violations.Social implications — Regulators and regulation implementers can make use of the study when considering a change in legal framework or in its practice.Originality/value — The paper shows the presence of selected pre-insolvency violations on an extensive dataset. Previous studies have mainly been theoretical, qualitative or using small datasets.

Details

(Dis)Honesty in Management
Type: Book
ISBN: 978-1-78190-602-6

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Book part
Publication date: 25 June 2016

Loly Aylú Gaitán-Guerrero and Charles Alberto Muller Sanchez

The purpose of this chapter is to explore the possible relation between public policy measures, particularly relating to currency exchange rates, capital flow mechanisms…

Abstract

Purpose

The purpose of this chapter is to explore the possible relation between public policy measures, particularly relating to currency exchange rates, capital flow mechanisms and cross-border insolvency by describing the current state of insolvency regulation in Latin America and some cases that exemplify this public-private dynamic.

Methodology/approach

The first part of the chapter is based on literature review and content analysis to show the current situation of the regulation of insolvency in Latin America and the evolution of policies shaping the flow of capital and the exchange rates. The second part illustrates the proceedings in selected countries, particularly for Colombia and Venezuela.

Findings

The analysis led to the finding that some countries’ policy mechanisms such as in the case of Venezuela might lead to a problem regarding national companies involved in an insolvency proceeding, particularly when the company alleges that public policy in force have changed circumstances leading to the impossibility of paying foreign-located liabilities.

Research limitations/implications

The chapter is based largely on literature review and available data, public legal documents and cases relating public policy and cross-border insolvency; however, insolvency proceedings are not of public domain; thus, there is a large amount of information related with the mentioned cases that remain undisclosed.

Originality/value

This chapter provides a theoretical and practical perspective to analyze cross-border insolvency from a local regulatory framework. It also demonstrates the possible link between public policy and cross-border insolvency.

Details

Dead Firms: Causes and Effects of Cross-border Corporate Insolvency
Type: Book
ISBN: 978-1-78635-313-9

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Article
Publication date: 5 September 2020

Shakti Deb and Indrajit Dube

This paper aims to revisit the Indian experience on corporate bankruptcy law to answer “why Indian corporate insolvency law structured differently from a manager-driven…

Abstract

Purpose

This paper aims to revisit the Indian experience on corporate bankruptcy law to answer “why Indian corporate insolvency law structured differently from a manager-driven (pre-Insolvency Code) to manager-displacing model (post-Insolvency Code)?”

Design/methodology/approach

This paper is qualitative in nature. The paper analyses the prevailing theoretical wisdom in corporate insolvency law in India and examines the practices of Indian bankruptcy regime.

Findings

The authors argued, considering the corporate ownership composition, the Insolvency and Bankruptcy Code 2016 will not accomplish the intended objective (i.e. the “creditor primacy”). The findings refute with the evolutionary theory, i.e. debt and equity both will tend towards dispersion in outsider system of governance.

Originality/value

This paper put forward the imprint that Indian corporate insolvency regime is manager-displacing under Law on Books and manager-driven under Law on Practice.

Details

International Journal of Law and Management, vol. 63 no. 1
Type: Research Article
ISSN: 1754-243X

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Article
Publication date: 12 November 2020

Rana Yassir Hussain, Xuezhou Wen, Haroon Hussain, Muhammad Saad and Zuhaib Zafar

Corporate boards monitor managerial decisions as concluded by the monitoring hypothesis. In this scenario, the present study stresses that leverage decisions can be used…

Abstract

Purpose

Corporate boards monitor managerial decisions as concluded by the monitoring hypothesis. In this scenario, the present study stresses that leverage decisions can be used as a tool to control insolvency risk.

Design/methodology/approach

This study aims at investigating the intervention of capital structure and debt maturity on the relationship between corporate board composition and insolvency risk by employing Preacher and Hayes’s (2008) approach. The study sample comprises 284 firms from 2013 to 2017. Structural equation modeling is used to study the direct and indirect relationships among study variables.

Findings

Results show that debt maturity is a significant mediator between CEO duality and insolvency risk and between board size and insolvency risk relationships. However, the capital structure did not mediate any of the proposed links.

Research limitations/implications

This study suggests using more long-term debt to tackle insolvency risk in listed non-financial firms of Pakistan. It is also inferred that decisions regarding debt maturity are more crucial than capital structure decisions because insolvency risk is concerned.

Originality/value

This study evaluates the comparative mediating role of the debt maturity and the capital structure. Such role is uncommon in the literature addressing the relationship between governance variables and insolvency risk.

Details

South Asian Journal of Business Studies, vol. ahead-of-print no. ahead-of-print
Type: Research Article
ISSN: 2398-628X

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Article
Publication date: 21 March 2008

Alexander J. Bělohlávek

The applicable jurisdiction for insolvency proceedings, as provided by the Regulation (EC) No 1346/2000 on insolvency proceedings, is the court of the Member State where…

Abstract

Purpose

The applicable jurisdiction for insolvency proceedings, as provided by the Regulation (EC) No 1346/2000 on insolvency proceedings, is the court of the Member State where the debtor's center of main interest (COMI) is located (Article 3(1)). The Regulation, however, does not provide a comprehensive definition of the COMI. This paper seeks to explore the meaning and developments behind the meaning of COMI as influenced by judicial reasoning and conflicts across Member States.

Design/methodology/approach

The study centres around the emerging jurisprudence and analyses case law across Member States in order to draw conclusions on the meaning of COMI and the emerging concepts. Extensive consideration of statutory interpretation, case reports and judicial comment is present in order to inform and develop conclusions.

Findings

In the absence of a definition it appears that the only relevant European guidance emerges from recital 13 and Article 3 (1). With little guidance in the Regulation, it has therefore been left to national courts to decide how the notion of COMI should be interpreted. Determining the COMI has emerged as one of the most controversial aspect and the principle point of legal conflict, with some highly debated cases within member states’ courts. On the basis of the case law, it is suggested that the interpretation of COMI is more flexible in UK and Italian courts. The approach adopted in continental Europe is referred to as the “centre of operations approach”, i.e. the debtor's COMI has to be determined by the place where he is “ascertainable by third parties”. The Anglo Saxon approach, on the other hand, is known as the “mind of management approach”, i.e. the debtor's COMI must be situated where decisions are actually made. The latter seems to enjoy a more practical and accessible approach.

Originality/value

Not only will the findings assist those seeking to understand the process and COMI requirements across member states but it will also assist those researchers seeking to understanding the comparative and conflict of law barriers to pan‐European insolvency proceedings.

Details

International Journal of Law and Management, vol. 50 no. 2
Type: Research Article
ISSN: 1754-243X

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Article
Publication date: 11 September 2017

Kingsley Opoku Appiah and Chizema Amon

The purpose of this paper is to examine whether the presence, expertise, independence, size and meetings of the audit committee (AC) have an effect on corporate insolvency.

Abstract

Purpose

The purpose of this paper is to examine whether the presence, expertise, independence, size and meetings of the audit committee (AC) have an effect on corporate insolvency.

Design/methodology/approach

The authors use 1,835 firm-year observations for 98 insolvent and 269 solvent UK-listed non-financial firms from 1994 to 2011.

Findings

The authors find that corporate insolvency is negatively related to the meetings and independence of the AC but not to AC’s presence and size. The authors also observe that financial expertise on the AC is not related to corporate insolvency. These associations are robust to different specifications, while after controlling for board composition, board size, the number of board meetings, CEO duality, financial and firm characteristics.

Research limitations/implications

The study’s approach has two main limitations: neglect of small and medium private unquoted firms and more regulated corporate governance environment.

Practical implications

The findings lend support to the continual use of the agency theory as an explanation in understanding the role of the analytical lens through which to study the efficacy of the AC in reducing the likelihood of insolvency.

Social implications

The findings support continued efforts to strengthen boards’ ACs in the wake of high profile insolvencies. The findings will assist regulators and firm management to design appropriate ACs (e.g. independence) and processes (e.g. number of meetings).

Originality/value

The authors provide empirical evidence on the impact of the AC on firm insolvency in the UK context, an important but neglected area in research.

Details

Journal of Applied Accounting Research, vol. 18 no. 3
Type: Research Article
ISSN: 0967-5426

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Article
Publication date: 11 November 2013

Chrispas Nyombi

This paper aims to provide an examination of the position employees find themselves during corporate insolvencies. The paper examines employees' rights under insolvency

Abstract

Purpose

This paper aims to provide an examination of the position employees find themselves during corporate insolvencies. The paper examines employees' rights under insolvency procedures such as administration, company voluntary arrangements (CVA), administrative receivership, pre-packs and liquidation, to establish whether the rescue goal can be affected by employees' claims. Priorities in liquidation are also widely examined to establish the status of employees under this procedure and their entitlements.

Design/methodology/approach

Legal analysis.

Findings

The law offers more protection to employees than unsecured creditors. In comparison to unsecured creditors and even floating charge security holders, employment claims stand in a highly enviable position during insolvency.

Originality/value

The paper offers a wholesale assessment of the rights of employees during insolvency. There is a lacuna in research literature that addresses the issue of employment rights during insolvency.

Details

International Journal of Law and Management, vol. 55 no. 6
Type: Research Article
ISSN: 1754-243X

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Article
Publication date: 14 May 2018

Hamiisi Junior Nsubuga

This paper aims to highlight how an interpretative approach to law as posited by Dworkin may be used to remedy the tension between employment protection and corporate rescue laws.

Abstract

Purpose

This paper aims to highlight how an interpretative approach to law as posited by Dworkin may be used to remedy the tension between employment protection and corporate rescue laws.

Design/methodology/approach

This paper adopts a doctrinal and theoretical approach to law.

Findings

The tension between corporate rescue and employment protection laws affects both employees’ and business owners’ policy objectives on corporate insolvency. The theoretical perspectives of both the traditionalists and proceduralists have so far failed to provide a clear approach on how this tension may be balanced or remedied. This paper proposes that this tension may be remedied through interpretation, that is, by adopting Dworkin’s Interpretative Approach to Law.

Originality/value

Most researchers and academics have written extensively about the tension between corporate rescue and employment protection, but this paper is the first of its kind to propose a remedy to this tension through interpretation.

Details

International Journal of Law and Management, vol. 60 no. 3
Type: Research Article
ISSN: 1754-243X

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Article
Publication date: 12 February 2018

Chrispas Nyombi

This paper aims to provide guidance to law reformers in Uganda on the best approach to insolvency law reform and the objectives that should be furthered.

Abstract

Purpose

This paper aims to provide guidance to law reformers in Uganda on the best approach to insolvency law reform and the objectives that should be furthered.

Design/methodology/approach

This paper provides a literature review.

Findings

A balance of various objectives serves the purpose of a modern insolvency law system.

Originality/value

These findings would enable future reforms in Uganda to be streamlined towards a particular objective rather than a general approach to insolvency regulation.

Details

International Journal of Law and Management, vol. 60 no. 1
Type: Research Article
ISSN: 1754-243X

Keywords

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