American Bankruptcy Law Journal最新文献

{"title":"Insolvency Close-Out Netting","authors":"S. Schwarcz","doi":"10.2139/ssrn.3691954","DOIUrl":"https://doi.org/10.2139/ssrn.3691954","url":null,"abstract":"This short paper, prepared for a colloquium on the Resolution of Financially Distressed Financial Institutions, explains insolvency close-out netting and its implications. The term refers to a special type of netting of offsetting derivatives obligations that entitles a derivatives counterparty, upon the occurrence of a bankruptcy or default relating to the other party, to terminate outstanding obligations and reduce the amounts mutually owing between the parties to a net amount. Although the purported goal of that netting is to reduce systemic risk, this paper critically analyzes the extent to which that occurs.","PeriodicalId":44862,"journal":{"name":"American Bankruptcy Law Journal","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2020-09-13","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"89673596","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The Companies And Allied Matters Act 2020 - Highlights of the Reforming Provisions and their Implications for Businesses and Investors in Nigeria","authors":"Sylva Ogwemoh, A. Folarin","doi":"10.2139/SSRN.3720259","DOIUrl":"https://doi.org/10.2139/SSRN.3720259","url":null,"abstract":"The signing into law of the Companies and Allied Matters Act (CAMA) 2020 is indeed a vital piece of good news and a ray of hope for many in Nigeria and beyond, especially in the business world. The now-repealed Companies and Allied Matters Act (CAMA) 1990 which had been in operation for thirty years without any substantial improvement despite constant developments in the global corporate practice landscape had over time become outdated. This had inevitably presented obstacles to the seamless incorporation, operation, and the conduct of businesses and investments in the country especially when compared with what is obtainable globally, and thus, deprived the country of the ease of doing business, inflow of investment, and economies of scale that a more modern and more resilient corporate practice regime could have engendered. As a result, the signing into law of the new CAMA has been described as one of the most impactful business/economic upheavals in the country in the past three decades due to its brazen attempt at improving the country’s ease of doing business and achieving global competitiveness in line with the Federal Government’s Economic Recovery and Growth Plan (ERGP 2017 – 2020) which targets Nigeria ranking in the top 70 in the World Bank’s Doing Business Index by 2023. It is believed that the enactment of the Act will reduce regulatory hurdles, ease the business environment, and increase investor confidence in Nigeria as an investment destination. In view of the above, this paper presents an overview of some of the most prominent and relevant provisions of the Act and attempts to clarify their significance/implications for businesses and investors in the country.","PeriodicalId":44862,"journal":{"name":"American Bankruptcy Law Journal","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2020-09-10","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"90875530","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Bankruptcy Law in Mexico","authors":"Francisco Rodriguez-Nepote","doi":"10.2139/ssrn.3683133","DOIUrl":"https://doi.org/10.2139/ssrn.3683133","url":null,"abstract":"This work is a complete analysis of the Bankruptcy Law in Mexico with legal text in plain English.","PeriodicalId":44862,"journal":{"name":"American Bankruptcy Law Journal","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2020-09-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"76563698","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Forced Contributions to Infructuous Liquidations: Understanding Regulation 2A","authors":"M. Mittal","doi":"10.2139/ssrn.3619040","DOIUrl":"https://doi.org/10.2139/ssrn.3619040","url":null,"abstract":"The article discusses the position of financial creditors in light of Regulation 2A of the IBBI (Liquidation Process) Regulations, 2016. The main theme of the article is whether the financial creditors of the corporate debtor are obligated to make such contributions.","PeriodicalId":44862,"journal":{"name":"American Bankruptcy Law Journal","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2020-06-04","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"76683250","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The New Small Business Bankruptcy Game: Strategies for Creditors Under the Small Business Reorganization Act","authors":"Christopher G. Bradley","doi":"10.2139/ssrn.3594656","DOIUrl":"https://doi.org/10.2139/ssrn.3594656","url":null,"abstract":"In late 2019, Congress enacted the Small Business Reorganizations Act. The Act’s timing is fortuitous: Weeks after it went into force in February, 2020, the Covid-19 pandemic damaged countless small businesses—enterprises that the Act may provide an opportunity to save. \u0000 \u0000The Act provides businesses with powerful options to reorganize under a new “subchapter V” of Chapter 11 of the Bankruptcy Code. Subchapter V eases the requirements for confirmation of plans that creditors don’t approve by simply requiring debtors to project their “disposable income” and pay it to creditors for three to five years; provides incentives for the parties to reach agreement on reorganization plans; lowers the debtor’s disclosure obligations; eliminates the regular appointment of an official committee of creditors; requires the appointment of a trustee to aid in plan negotiations; and permits modification of loans secured by a mortgage on a debtor’s primary residence. \u0000 \u0000Creditors will have to develop a new playbook for subchapter V cases. Most scholarship has emphasized debtors’ new options, but this Article presents an analysis from the perspective of creditors. Of course, creditors are not created equal; strategies will only be useful to creditors with claims substantial enough to justify the investment of time and money. Well-positioned creditors will extract whatever strategic gains they can at the expense of the debtor and of less privileged creditors. The game is multilateral, not simply creditor vs. debtor. The Article suggests strategies for variously positioned creditors to protect their interests. \u0000 \u0000The Article suggests seven major strategies: \u00001) Creditors should seek influence or control a debtor’s entry into subchapter V by making agreements with debtors concerning the election, using financial maneuvers to work around subchapter V’s debt limits, or challenging the debtor’s eligibility for entry. \u00002) Creditors should monitor and make use of trustees as circumstances warrant, whether by cultivating and working closely with them, by seeking to minimize their role and save expenses, or, at the extreme, by opposing them and seeking their removal. \u00003) To combat debtors’ tendency to delay, creditors should apply pressure on the debtor by emphasizing the statutory emphasis on speed, scrutinizing the debtor’s required disclosures, and enlisting the trustee and court where possible. \u00004) Creditors should avoid holding general unsecured claims, and, if eligible, should take the election offered by §1111(b) of the Code. \u00005) Subchapter V places a premium on plans being approved by creditors, so those whose votes are needed for confirmation should extract concessions in exchange for their vote. For those privileged creditors, this should be a major point of leverage. \u00006) Creditors should look to obtain information at every opportunity, including at the required meeting of creditors and status conference early in the case, in the disclosures and filings made by the d","PeriodicalId":44862,"journal":{"name":"American Bankruptcy Law Journal","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2020-05-18","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"74110955","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Debt Assignments and Notice to Debtors","authors":"Dr Kubi Udofia","doi":"10.2139/ssrn.3593432","DOIUrl":"https://doi.org/10.2139/ssrn.3593432","url":null,"abstract":"An assignment of a debt transfers the rights in the debt from the creditor (assignor) to a third party (assignee). The assignee becomes the creditor of the (assigned) debt. In Bennett v White [1910] 2 KB 643 at 646-647 the court explained that an assigned debt is for all purposes in the same position as if it had been the original debt of the assignee.<br><br>There is a dearth of Nigerian judicial authorities on assignment of choses in action. This exiguity was observed in Julius Berger Nigeria Plc v T.R.C.B. Ltd [2010] 9 NWLR (Pt 1198) 80 at 106C-D. This discourse assesses the significance of notice to debtors in debt assignments. It is certainly not an exhaustive thesis on this issue.<br>","PeriodicalId":44862,"journal":{"name":"American Bankruptcy Law Journal","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2020-05-05","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"75938223","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Restructuring Lebanese Sovereign Debt: Tackling the Holdout Problem","authors":"Brenda Luo, Chris Smith, A. Xiao","doi":"10.2139/SSRN.3575063","DOIUrl":"https://doi.org/10.2139/SSRN.3575063","url":null,"abstract":"Lebanon can threaten to take the following three actions to restructure its debt and weaken the position of a potential holdout creditor, such as the Ashmore Group, that holds more than 25% of the outstanding debt. \u0000 \u0000First, unilaterally amend the terms of the Fiscal Agency Agreement pursuant to Para. 23.1 to allow bondholders representing a simple majority of the outstanding debt to amend non-core terms, contrary to the 75% required to pass an extraordinary resolution. \u0000 \u0000Second, initiate the debt restructuring through a debt exchange program with an exit consent that requires participating bondholders to vote to amend the two non-core terms in the Fiscal Agency Agreement: (1) amend the forum selection clause to ensure that in the event of default, the creditor may only bring a lawsuit against the debtor in a Lebanese court (para. 8.3); (2) remove the pari passu clause (para. 3). \u0000 \u0000Third, the Lebanese Parliament enacts a law effectively accomplishing that (1) the New bonds are senior to the Old Bonds; (2) the government may make selective payments on its senior debt until they are paid in full without resulting in default on junior claims; (3) successful creditor-litigants have the obligation to apply the proceeds of a successful judgment against Lebanon to senior creditors. \u0000 \u0000In the event that Lebanon fails in these three actions, Lebanon can still rely on the necessity doctrine as an affirmative defense.","PeriodicalId":44862,"journal":{"name":"American Bankruptcy Law Journal","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2020-04-13","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"81359868","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"How to Help Small Businesses Survive COVID-19","authors":"Todd H. Baker, Kathryn Judge","doi":"10.2139/ssrn.3571460","DOIUrl":"https://doi.org/10.2139/ssrn.3571460","url":null,"abstract":"Small businesses are among the hardest hit by the COVID-19 crisis. Many are shuttered, and far more face cash flow constraints, raising questions about just how many will survive this recession. The government has responded with a critical forgivable loan program, but for many of these businesses, this program alone will not provide the cash they need to retain workers, pay rent, and help their business come back to life when Americans are no longer sheltering in place. This essay calls on regulators to find new and creative ways to work with existing intermediaries, including banks and online lenders, who have the infrastructure and tools needed to help small businesses get the additional loans they need to survive and thrive. Leveraging existing institutions could enhance the speed, scale, and scope of the government’s response, all critical virtues in the efforts to support small business.","PeriodicalId":44862,"journal":{"name":"American Bankruptcy Law Journal","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2020-04-10","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"83411789","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"La usura en los intereses pactados en un título de crédito en México (Usure in Interests Agreed in a Credit Title in Mexico)","authors":"Carlos Arcudia Hernánd, Blanca Torres Espinosa","doi":"10.18601/16923960.v18n2.05","DOIUrl":"https://doi.org/10.18601/16923960.v18n2.05","url":null,"abstract":"El pagare es un titulo de credito que por sus caracteristicas tiene una efectividad muy amplia. Este instrumento preve la posibilidad de pactar intereses, o bien, ajustarse al tipo legal. Por ende, puede darse el caso de que se pacten intereses usurarios. Producto de las reformas constitucionales en materia de derechos humanos en 2011 se comenzo a aplicar el control de convencionalidad y uno de los primeros casos en ser tratados fue el de la inconvencionalidad de los intereses usurarios. La Primera Sala de la Suprema Corte de Justicia comenzo a resolver controversias sobre la interpretacion del articulo 21.3 del Pacto de San Jose, que –en principio– consideraban inconvencional el pacto de intereses usurarios. Pero conforme se han ido produciendo los diferentes criterios jurisprudenciales ha ido ajustando el proceder de los juzgadores en caso de advertir usura. La evolucion fue de un criterio subjetivo a uno objetivo relativo.","PeriodicalId":44862,"journal":{"name":"American Bankruptcy Law Journal","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2020-03-05","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"88991092","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Giving to Creditors What Creditors Are Due: Why Chapter 13 Trustees Should Distribute Any Post-Confirmation Funds Held at Dismissal to the Debtor’s Creditors","authors":"B. Carlton","doi":"10.2139/ssrn.3525440","DOIUrl":"https://doi.org/10.2139/ssrn.3525440","url":null,"abstract":"In 2018 there were almost three hundred thousand petitions filed under Chapter 13 of the Bankruptcy Code. But of this number fifty-five percent of these cases were dismissed. When the Chapter 13 trustee is holding funds yet to be disbursed at dismissal, a split in authority exists. Should the trustee distribute these funds to the debtor, because the Chapter 13 case ceases to exist? Or should the trustee disburse these funds to the debtor’s creditors according to the Chapter 13 plan? This Article argues that the latter approach is the one which should be adopted by all courts. A majority of courts disagree, but this Article argues that the applicable bankruptcy code provisions, legislative history, policy, and canons of statutory construction favor distributing any funds held by the trustee at dismissal to the debtor’s creditors.","PeriodicalId":44862,"journal":{"name":"American Bankruptcy Law Journal","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2020-01-25","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"82507961","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}