Insolvency, Competition, and the Theory of the Firm

Q2 Social Sciences

European Business Law Review Pub Date : 2021-08-01 DOI:10.54648/eulr2021026

Vitorio Minervini

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Abstract

The paper examines the recent developments in the field of business crisis management, with a focus on the European and US legal cultures. The main argument is the need for a consistent framework between insolvency and competition law in the theory of the firm. The present analysis reveals the need for a proper balance between the principle of competition on the merits and the philosophy of business-rescue in order to avoid dysfunctions in the application of insolvency and antitrust statutes. After an overview of the main contact cases between the two disciplines, the article addresses the main lawmakers’ responses to this problem. In this context, the regulation on banking crises management represents a first attempt to strike a proper balance between the (apparently compelling) goals underlying insolvency and competition law. This article aims at providing some guidance for a systematic reading of the two disciplines. Moving from a holistic understanding of the theory of the firm, it suggests assigning competition law a pivotal role in order to pursue efficiency in the market and consistency in legal theory. Investment funds, reserved AIFs, share classes, fair treatment, seniority privilege, minimum interest privilege, non-contagion principle, preferential treatment, shift of wealth

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破产、竞争与公司理论

本文考察了商业危机管理领域的最新发展，重点是欧洲和美国的法律文化。主要论点是在破产和竞争法之间需要一个一致的公司理论框架。本分析表明，需要在根据是非得失进行竞争的原则与商业救助的理念之间取得适当的平衡，以避免破产和反托拉斯法规的适用出现功能障碍。在概述了两个学科之间的主要接触案例之后，本文讨论了主要立法者对这一问题的回应。在这种背景下，银行业危机管理法规代表着首次尝试在破产法和竞争法(显然是令人信服的)基本目标之间取得适当平衡。本文旨在为系统地阅读这两个学科提供一些指导。从对公司理论的整体理解出发，它建议赋予竞争法一个关键的角色，以追求市场效率和法律理论的一致性。投资基金、保留型aif、股票类别、公平待遇、资历特权、最低利息特权、非传染原则、优惠待遇、财富转移

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来源期刊

European Business Law Review Social Sciences-Law

CiteScore

1.10

自引率

0.00%

发文量

期刊介绍： The mission of the European Business Law Review is to provide a forum for analysis and discussion of business law, including European Union law and the laws of the Member States and other European countries, as well as legal frameworks and issues in international and comparative contexts. The Review moves freely over the boundaries that divide the law, and covers business law, broadly defined, in public or private law, domestic, European or international law. Our topics of interest include commercial, financial, corporate, private and regulatory laws with a broadly business dimension. The Review offers current, authoritative scholarship on a wide range of issues and developments, featuring contributors providing an international as well as a European perspective. The Review is an invaluable source of current scholarship, information, practical analysis, and expert guidance for all practising lawyers, advisers, and scholars dealing with European business law on a regular basis. The Review has over 25 years established the highest scholarly standards. It distinguishes itself as open-minded, embracing interests that appeal to the scholarly, practitioner and policy-making spheres. It practices strict routines of peer review. The Review imposes no word limit on submissions, subject to the appropriateness of the word length to the subject under discussion.