Law & Society: Private Law - Financial Law eJournal最新文献

{"title":"Micro, Small and Medium Enterprise (MSME) Insolvency in Canada","authors":"Janis Sarra","doi":"10.2139/SSRN.2862039","DOIUrl":"https://doi.org/10.2139/SSRN.2862039","url":null,"abstract":"Insolvency law is broadly recognized as an essential tool in well-functioning economies. A balance of mechanisms that allow for timely and effective liquidation, but also for a “fresh start” for individual entrepreneurs and the rehabilitation of viable businesses, tends to enhance creditor recoveries and lender confidence. This study examines the treatment of micro, small and medium enterprises (“MSME”) under the Canada Bankruptcy and Insolvency Act. It undertakes a qualitative examination of 200 business insolvencies in 2015, in order to try to understand the reasons for insolvency, types of debt, and outcomes of proceedings. The study reports on the results of a survey of 53 licenced insolvency trustees and 10 loan officers across Canada, in terms of their experience with respect to the barriers to small and medium enterprise insolvency. It suggests a series of legislative changes, including creating a streamlined approach to the insolvency of micro and small businesses (“MSE”), so that MSE can access formal proceedings; a deemed approval process where creditors have received meaningful notice and do not object to the proposal; increased authority for the insolvency professional, reducing the administrative burden and cost of multiple court appearances; and other measures to enhance access to insolvency system.","PeriodicalId":137765,"journal":{"name":"Law & Society: Private Law - Financial Law eJournal","volume":"14 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2016-03-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"129293920","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Courts and Sovereigns in the Pari Passu Goldmines","authors":"Anna Gelpern","doi":"10.2139/SSRN.2567880","DOIUrl":"https://doi.org/10.2139/SSRN.2567880","url":null,"abstract":"The pari passu clause in sovereign bond contracts has spawned an improbably huge academic literature and a fast-growing jurisprudence, culminating in recent U.S. federal court decisions, which used the clause to block payments on nearly $30 billion in Argentinian debt. The academic literature, judicial opinions, briefs and expert reports going back to the mid-1990s all assume that no court had interpreted the pari passu clause in sovereign debt before the year 2000. It turns out that there were at least four instances of such interpretation in the twentieth century.This essay discusses litigation in Switzerland in the 1930s and a decade-long international arbitration in the 1970s, in which four different panels considered the meaning of pari passu clauses in German Young Loan bonds. All four panels interpreted the clause in ways that might well be consistent with those of the U.S. federal courts; however, the bondholders still lost.Documents from the League of Nations archives suggest that the 1930s lawsuit against the Bank for International Settlements as trustee for the German bonds influenced proposals for contract and institutional change in sovereign debt management, notably with respect to the role of the bond trustee. To the extent such reforms might have had a chance, World War II and its aftermath put them on hold until the turn of the 21st century. As the dust from Argentina's debt saga begins to settle, the old disputes over the meaning of pari passu offer unexpected lessons for debt enforcement and contract reform.","PeriodicalId":137765,"journal":{"name":"Law & Society: Private Law - Financial Law eJournal","volume":"83 6 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2016-02-25","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"126075235","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Towards a Tribunal Services Agency","authors":"Pratik Datta","doi":"10.2139/SSRN.2730592","DOIUrl":"https://doi.org/10.2139/SSRN.2730592","url":null,"abstract":"The performance of Indian tribunals has been unsatisfactory. Yet, policy-makers continue to rely heavily on tribunals to achieve their end objective. One example of this are the tribunals which will adjudicate in the proposed Insolvency and Bankruptcy Code, 2015. This is premised on the assumption that the tribunals will be able to dispose of cases within hard deadlines. A natural key question that arises is how Indian tribunals can perform better in this matter when they cannot in others? This paper proposes that administrative functions of tribunals should be hived off into a separate agency - Tribunal Services Agency - which will help improve the performance of the administrative functions of tribunals and, in turn, improve their judicial functioning in general.","PeriodicalId":137765,"journal":{"name":"Law & Society: Private Law - Financial Law eJournal","volume":"135 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2016-02-08","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"127382049","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Charging Orders -- A Reconsideration","authors":"Allen Sparkman","doi":"10.2139/SSRN.2727973","DOIUrl":"https://doi.org/10.2139/SSRN.2727973","url":null,"abstract":"A review of charging order law and developments and recommendations for change. Society expects accountability in many areas. Creditors expect that people who owe them money will be accountable for their debts. A person who is injured by another person’s negligence or misconduct expects the other person to be accountable. Persons who seek professional advice — whether medical, legal, accounting, or other — expect to receive competent advice tailored to their particular problem and that the professional advisor will stand behind his or her advice. Often, if not in most cases, the owners, customers, and suppliers of businesses expect the people who are managing the business to be accountable for managing the business well. Despite these understandable expectations, changes in the law in the last several years with respect to a creditor’s ability to reach a debtor’s interest in a partnership or limited liability company have made accountability ephemeral or non-existent in many cases.","PeriodicalId":137765,"journal":{"name":"Law & Society: Private Law - Financial Law eJournal","volume":"11 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2016-02-04","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"128366682","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"La Direttiva 17/2014, Il Mercato Dei Crediti Immobiliari E La Consulenza Al Credito (EU Directive 17/2014 on Mortgages to Consumers Clients)","authors":"Alberto Lupoi","doi":"10.2139/ssrn.3000494","DOIUrl":"https://doi.org/10.2139/ssrn.3000494","url":null,"abstract":"<b>English Abstract:</b> The European Directive on mortgage loans provides important new set of rules specially for those civil law countries (as Italy) having a no efficient foreclosure procedure. The main task of the Directive is not only to give more protection to consumer, in fact the main task is to prevent the predatory lending and to create a better credit to be securitized. In this view the mortgage is becoming a complex financial contract requiring financial skills to the consumers. <b>Italian Abstract:</b> La Direttiva sui contratti di credito immobiliari ai consumatori vorrebbe impedire il fenomeno del predatory lending in europa e migliorare la qualità del credito immobiliare, in vista di più efficienti cartolarizzazioni. Il mutuo immobiliare per molti aspetti è diventato un contratto finanziario non sempre di immediata comprensione per il consumatore. La conuslenza al credito è necessaria sia per illustrare il contratto al consumatore, sia per assicurare che esso sia in linea con le sue capacità finanziarie, proiettate nel tempo della durata del contratto.","PeriodicalId":137765,"journal":{"name":"Law & Society: Private Law - Financial Law eJournal","volume":"136 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2016-02-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"123586953","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"To Separate or Not to Separate Investment from Commercial Banking? An Empirical Analysis of Attention Distortion Under Multiple Tasks","authors":"R. Gropp, Kyounghoon Park","doi":"10.2139/ssrn.2803074","DOIUrl":"https://doi.org/10.2139/ssrn.2803074","url":null,"abstract":"In the wake of the 2008/2009 financial crisis, a number of policy reports (Vickers, Liikanen, Volcker) proposed to separate investment banking from commercial banking to increase financial stability. This paper empirically examines one theoretical justification for these proposals, namely attention distortion under multiple tasks as in Holmstrom and Milgrom (1991). Universal banks can be viewed as combining two different tasks (investment banking and commercial banking) in the same organization. We estimate pay-performance sensitivities for different segments within universal banks and for pure investment and commercial banks. We show that the pay-performance sensitivity is higher in investment banking than in commercial banking, no matter whether it is organized as part of a universal bank or in a separate institution. Next, the paper shows that relative pay-performance sensitivities of investment and commercial banking are negatively related to the quality of the loan portfolio in universal banks. Depending on the specification, we obtain a reduction in problem loans when investment banking is removed from commercial banks of up to 12 percent. We interpret the evidence to imply that the higher pay-performance sensitivity in investment banking directs the attention of managers away from commercial banking within universal banks, consistent with Holmstrom and Milgrom (1991). Separation of investment banking and commercial banking may indeed be associated with a reduction in risk in commercial banking.","PeriodicalId":137765,"journal":{"name":"Law & Society: Private Law - Financial Law eJournal","volume":"179 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2016-02-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"132256368","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Too Important to Fail: Bankruptcy versus Bailout of Socially Important Non-Financial Institutions","authors":"Shlomit Azgad-Tromer","doi":"10.2139/ssrn.2551237","DOIUrl":"https://doi.org/10.2139/ssrn.2551237","url":null,"abstract":"Systemically important financial institutions are broadly considered to impose a risk to the entire economy upon failure; thus taxpayers act upon their failure, providing them with an implied insurance policy for ongoing liquidity. Yet taxpayers frequently provide de-facto liquidity insurance for non-financial institutions as well. For example, recently in the U.K., hospital trusts were sharing millions in bailouts. A decade earlier, a federal court approved California's multibillion-dollar bailout of Pacific Gas & Electric Corporation. The Russian government continuously subsidizes corporations exclusively providing employment and social amenities in Monotowns. After 9/11, the U.S. Congress passed the Air Transportation Safety and System Stabilization Act, which provided the airline industry with financial aid. In all of these cases, taxpayer money was used to rescue non-financial organizations. The article defines a new category of socially important non-financial institutions (SINFIs) and proposes a method for their ex-ante identification. SINFIs are corporations exclusively providing an essential social function, and the article offers guidelines for defining essential industries and essential social functions as well as for assessing the monopolistic position assumed by the SINFI for provision of the essential service or social function.The case for bailouts of socially important non-financial institutions is discussed. Liquidity distress for a SINFI is unlikely to be resolved efficiently through bankruptcy, as the risk of an operating default for the socially important institution imposes an immediate crisis of confidence. The provision of service by a socially important institution imposes positive externalities on the general public, rendering the main features of bankruptcy, namely, debtor-in-possession rules and the ability to sell assets free and clear of all liens, sub-optimally efficient. Private investors are unlikely to capture the full value of their investment in the socially important firm on the edge of illiquidity. Thus, in a financially distressed SINFI, both the likelihood of new investment opportunities and their potential terms are expected to be suboptimal, and public finance is likely to be required: socially-important non-financial institutions are too important to fail. The article further analyses the structural characteristics and distorted corporate governance of socially important non-financial institutions. The elevated probability of rescue in case of failure makes the socially important non-financial institution prone to unwarranted expansion, and distorts its corporate governance well before failure occurs. The resulting moral hazard creates both enhanced incentives for excessive leverage and risk-taking, and elevated incentives for empire building due to the weaker corporate governance mechanisms available.","PeriodicalId":137765,"journal":{"name":"Law & Society: Private Law - Financial Law eJournal","volume":"75 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2015-10-17","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"134008577","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"From Corner Shop to Large Multinational: Should Voluntary Administration Remain a One-Size-Fits-All Procedure? Do We Need a Fast Track System for Small Business Rescues?","authors":"Jason Harris","doi":"10.2139/SSRN.2652552","DOIUrl":"https://doi.org/10.2139/SSRN.2652552","url":null,"abstract":"Voluntary administration provides a formal corporate rescue mechanism under both Australia’s and New Zealand’s corporate insolvency laws. It was designed to provide a fast and efficient means for promoting corporate rescue. The goal of saving businesses was specifically included in the statutory objects. The voluntary administration process is a 'one size fits all' model that has been applied to all business types since its inception, from corner shops to large multinationals but it seems to be decreasing in popularity in Australia and has never really taken off in New Zealand. Liquidation and receiverships are far more popular than voluntary administrations. In Australia, fewer than 1 in 5 insolvencies go through voluntary administration and in New Zealand the number is far fewer. This essay argues that voluntary administration has become too expensive for small and medium size businesses and that the one-size fits all model no longer achieves the stated statutory purpose. The essay discusses options for a more streamlined system for SME businesses. Given the much longer time period since its introduction (over 20 years), the paper uses Australia as a case study and makes references throughout to comparable provisions in New Zealand. The criticism of the voluntary administration procedure, and the options for law reform, apply equally to both jurisdictions.","PeriodicalId":137765,"journal":{"name":"Law & Society: Private Law - Financial Law eJournal","volume":"15 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2015-08-27","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"127756011","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Private and Public Enforcement of Securities Regulation","authors":"H. Jackson, Jeffery Y. Zhang","doi":"10.2139/ssrn.2913095","DOIUrl":"https://doi.org/10.2139/ssrn.2913095","url":null,"abstract":"This chapter examines the impact of private and public enforcement of securities regulation on the development of capital markets. After a review of the literature, it considers empirical findings related to private and public enforcement as measured by formal indices and resources, with particular emphasis on the link between enforcement intensity and technical measures of financial market performance. It then analyses the impact of cross-border flows of capital, valuation effects, and cross-listing decisions by corporate issuers before turning to a discussion of whether countries that dedicate more resources to regulatory reform behave differently in some areas of market activities. It also explores the enforcement of banking regulation and its relationship to financial stability and concludes by focusing on direct and indirect, resource-based evidence on the efficacy of the US Securities and Exchange Commission’s enforcement actions.","PeriodicalId":137765,"journal":{"name":"Law & Society: Private Law - Financial Law eJournal","volume":"110 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2015-06-09","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"128804132","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Procedure for Registration of Charges in Nigeria - Need for Urgent Reforms","authors":"K. Aina","doi":"10.2139/SSRN.2605276","DOIUrl":"https://doi.org/10.2139/SSRN.2605276","url":null,"abstract":"This paper examined the procedure for the registration of charges in Nigerian law. The list of registrable charges in section 197 Companies and Allied Matters act 2004 was examined, and the study revealed that the list is outdated and not adequate for modern financial practice. Modern debt finance practices including the use of receivables and other current forms of charges are not captured as registrable charge. The requirement of the law for companies to maintain a register of charges and debentures for the purpose of giving notice to investors of charges on the company assets is laudable, however the sanction in cases of default is negligible and ineffectual, and the fact that non registration by the company or late registration does not affect priority of the charges renders the whole provision useless and ineffectual. The 90 days period for registration without any other procedure for notice filing of executed charges has remained a great challenge to registration of charges in Nigeria. From a comparative viewpoint the paper concluded with suggestions for reforms.","PeriodicalId":137765,"journal":{"name":"Law & Society: Private Law - Financial Law eJournal","volume":"157 3","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2015-05-11","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"113990717","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}