Plan Governance: A Hybrid Model with Both a Democratic and a Judicial Component

Abstract

Chapter 4 starts by setting out that a plan provides a mechanism for democratic decision-making. In other words, the legal subjects determine the matter themselves by majority decision. In purely democratic form, it further argues, a plan is not suitable as an insolvency instrument. To be effective as an instrument for dealing with insolvency, a plan mechanism needs to be supplemented by non-democratic coercive measures imposed by judicial decision. The chapter then looks at the advantages of democratic decision-making. These include the power of self-determination, the fact that a democratic system enables a distribution in non-cash through restructuring, and the ability to obtain a certain degree of deal certainty by reaching an agreement with the requisite majorities. The chapter then discusses the rationale and system of voting in classes in more detail.