American Bankruptcy Law Journal最新文献

{"title":"Debt Restructurings and the Trust Indenture Act","authors":"Harald Halbhuber","doi":"10.2139/SSRN.2782290","DOIUrl":"https://doi.org/10.2139/SSRN.2782290","url":null,"abstract":"This article demonstrates that the Trust Indenture Act, a Depression-era statute governing bond indentures, cannot have been intended to prohibit debt restructurings like the one in Marblegate. In that decision, a federal court recently held that a debt restructuring violated the non-impairment provision of the statute because it presented unsecured bondholders with a choice between exchanging their bonds for equity and being left with claims against an empty shell by virtue of a foreclosure by secured creditors. This article shows that, in the 1930s, transactions like the one in Marblegate were not, as the court suggested, an unforeseen legal device, but a generally accepted debt restructuring technique. There is no indication that Congress intended to outlaw them. More importantly, most bond indentures at the time already contained the non-impairment provision relied on by the court, well before it was mandated by the statute. That provision co-existed with restructurings like the one in Marblegate, and it did not occur to anyone, let alone Congress, that the provision would have prohibited such transactions. Still, as the article also shows, the provision was not irrelevant boilerplate, and making it mandatory was critical to the SEC’s policy. This does not mean that minority bondholders have no protections in debt restructurings outside bankruptcy. These restructurings are subject to fraudulent conveyance and other laws protecting creditors generally, just as they would have been in the 1930s.","PeriodicalId":44862,"journal":{"name":"American Bankruptcy Law Journal","volume":"19 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2016-05-20","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"77824753","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 Default and the Limits of the Contractual Imagination: Pareto and Mosca Meet Buchanan","authors":"R. Wagner","doi":"10.2139/ssrn.2776965","DOIUrl":"https://doi.org/10.2139/ssrn.2776965","url":null,"abstract":"Personal debts are obligations that people establish through agreement among one another, so it is easy to understand the general objection to defaulting on debts. Can such objections be reasonably extended in robotic fashion to public debts within democratic regimes? While a common piece of ideology claims that democracy is a system of self-governance, the reality is that governance always rests with a subset of the population. While there are clearly people who support public debt, it’s equally clear that a good number of people would prefer less public spending and lower future taxes. While some people are likely to regard public debt as an obligation, others are likely to regard it as an imposition. The extent to which people regard public debt as obligations or as impositions is surely a matter of the ideological resonance of alternative political programs, which belongs to the domain of non-logical action. Debt default is more a matter of the economics of conflict than of the economics of cooperation, and so is always a latent possibility that depends on momentary patterns of political coalition.","PeriodicalId":44862,"journal":{"name":"American Bankruptcy Law Journal","volume":"122 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2016-05-07","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"85354264","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":"When Contractual Rights are Better than Constitutional Rights: Addressing Puerto Rico's Debt Crisis Through Constitutional Amendment","authors":"Adrien Dumoulin-Smith, John Epling, James Tian","doi":"10.2139/SSRN.2764440","DOIUrl":"https://doi.org/10.2139/SSRN.2764440","url":null,"abstract":"Constitutional rights are commonly considered the most fundamental, most protective of rights. Yet, in the context of public debt, there is a critical difference between constitutional provisions and contractual promises: who wields the power to amend. It generally takes mutual consent for parties to amend a contract, but the Constitution of Puerto Rico can be amended by the people of Puerto Rico by referendum, without creditors’ consent. Creditors understand that local law is subject to change. Creditors who do not want to assume that risk negotiate for explicit contractual protections and insist that another jurisdiction’s law govern the debt. For instance, Puerto Rico’s latest bonds, issued in 2014, are protected by explicit priority and remedy provisions in the language of the contract and are governed by New York law (hereinafter “NY law bonds”). The NY law bonds account for only about $3.5 billion of Puerto Rico’s $17 billion in general obligation (“GO”) debt. Accordingly, if Puerto Rico amended its Constitution it could reprioritize public spending over the significant majority of its general obligation bonds, those governed by Puerto Rican law (“PR bonds”). Puerto Rico can wield this power to encourage PR bond creditors to restructure. Right now, Puerto Rico’s pleas to restructure are more likely to fall on deaf ears since creditors can sue for payment from tax revenues. Reasonable investors may understand that a healthy, sustainable Puerto Rico will enhance their likelihood of sustainable payments in the future, but possible holdouts create real fears that those who restructure will bear the brunt of the crisis without fellow creditors carrying their fair share. Indeed, a creditor lawsuit could jeopardize a sustainable recovery even if reasonable creditors agree to haircuts. A constitutional amendment could check the extraordinary priority of creditors to pave the way for a productive refinancing.This paper will briefly examine the danger that holdouts pose to the refinancing process. It will then explain how the vulnerabilities of the PR law bonds’ enforcement mechanisms can be used to encourage restructuring. Finally, it will answer possible critiques of the plan and address potential legal challenges.","PeriodicalId":44862,"journal":{"name":"American Bankruptcy Law Journal","volume":"94 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2016-04-13","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"81778924","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":"Sovereign Default in the US","authors":"O. Ergungor","doi":"10.26509/WP-201609","DOIUrl":"https://doi.org/10.26509/WP-201609","url":null,"abstract":"In the absence of a judicial mechanism to reduce the debt burden of a sovereign member of our Union, the resolution process can be quick but perhaps too indifferent to the health, safety, and welfare of the affected residents. In this paper, I use evidence from the Arkansas state archives to provide a description of the events surrounding the default of the state in 1933. I examine the evolution of the negotiations, the outcomes, and the role of fiscal policy.","PeriodicalId":44862,"journal":{"name":"American Bankruptcy Law Journal","volume":"56 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2016-03-14","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"83109755","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":"Aandeelhouders, Absolute Prioriteit en de Debt-for-Equity Swap (Shareholders, Absolute Priority and the Debt-for-Equity Swap)","authors":"J. Hummelen","doi":"10.2139/SSRN.2397833","DOIUrl":"https://doi.org/10.2139/SSRN.2397833","url":null,"abstract":"Dutch Abstract: Schuldeisers en aandeelhouders hebben een verschillende aanspraak op het vermogen van de vennootschap. Schuldeisers hebben als eerste recht op uitbetaling uit het vermogen. En hun aanspraak - en bij faillissement hun verlies - bedraagt maximaal het bedrag van hun vordering. Aandeelhouders daarentegen hebben in beginsel als laatste aanspraak op het vermogen van een vennootschap. Zij dienen dan ook slechts het surplus dat overblijft na voldoening van de schuldeisers te ontvangen. Dit surplus kan in beginsel heel groot zijn. Het kan echter ook nihil zijn. Zoals bij een faillissement. In de praktijk doet het zich echter voor dat faillissementsakkoorden tot stand komen, waarbij aan de aandeelhouders nog een belang in de gereorganiseerde onderneming wordt gelaten. Ondanks dat de waarde van de vennootschap lager is dan het vreemd vermogen. Anders gezegd, aandeelhouders krijgen een uitkering, terwijl de (hoger) gerangschikte schuldeisers niet volledig worden voldaan. In dit artikel wordt aan de hand van de creditors’ bargain theorie betoogd dat een akkoord slechts zou moeten worden gehomologeerd indien het voldoet aan de eis van absolute prioriteit. Om aan een dergelijke eis te kunnen voldoen, dient de Faillissementswet te worden aangescherpt en de figuur van de debt-for-equity swap te worden geintroduceerd. Ter inspiratie wordt gekeken naar Chapter 11 van het Amerikaanse faillissementsrecht. English Abstract: Creditors and shareholders have a different claim against a corporation. Creditors have a right of first payment from its capital. And their claim - and in bankruptcy their loss - is at most the amount of their claim. Shareholders, on the other hand, are the last in line with their claim. They should, therefore, only receive the surplus that remains after satisfaction of the claims of the creditors. In Dutch bankruptcies the situation occurs in which reorganization plans (faillissementsakkoord) enter in to force, in which shareholders retain a stake in the equity of the reorganised debtor. Despite the fact that the value of the corporation is lower dan the amount of outstanding debt. Or, in other words, shareholders receive a pay-out, while the (higher ranked) creditors are not fully satisfied. In this Dutch Article I argue, in light of the creditors' bargain theory, that a reorganization plan should only be confirmed if it satisfies the requirement of absolute priority. In this respect the Dutch Bankruptcy Code (Faillissementswet) should be altered and the debt-for-equity swap should be introduced. I look at the American Chapter 11 for inspiration for legal changes.","PeriodicalId":44862,"journal":{"name":"American Bankruptcy Law Journal","volume":"1 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2016-01-11","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"85310259","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":"Judgment Creditors, Resulting Trusts, and the Matrimonial Home","authors":"P. Spiro","doi":"10.2139/ssrn.3546959","DOIUrl":"https://doi.org/10.2139/ssrn.3546959","url":null,"abstract":"One often finds that a person in business puts the title to the family home only in the name of the other spouse, rather than holding it in joint title. The hope is that the house will remain safe from his creditors if he cannot pay his business debts. This can backfire for a variety of reasons, particularly if the spouses later separate. One situation in which it will fail to provide protection is when unpaid debts were already looming at the time the transfer occurred. If such a transfer of ownership is done with the intent of defeating creditors, it can be deemed to be a fraudulent conveyance and set aside by a court as void against creditors. Putting the house in only one name does sometimes offer protection, but it should be approached with careful planning.","PeriodicalId":44862,"journal":{"name":"American Bankruptcy Law Journal","volume":"29 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2016-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"85506297","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":"Legal and Regulatory Considerations Pertaining to Islamic Capital Markets","authors":"Michael J. T. McMillen","doi":"10.1002/9781119218845.CH5","DOIUrl":"https://doi.org/10.1002/9781119218845.CH5","url":null,"abstract":"A book chapter providing an overview of select aspects of legal and regulatory issues affecting Islamic capital markets. The categories of issues discussed are (ad) securities laws and regulatory regimes, (b) securitization laws, including laws and regulations applicable to sukuk, and legal regime matters, including both legal opinion matters that are critical to capital markets transactions and general systemic matters.","PeriodicalId":44862,"journal":{"name":"American Bankruptcy Law Journal","volume":"117 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2015-12-10","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"75650858","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 First Sovereign Pari Passu? It's All Scottish to Me","authors":"Pablo Triana","doi":"10.2139/SSRN.2662851","DOIUrl":"https://doi.org/10.2139/SSRN.2662851","url":null,"abstract":"I found an 1838 legal document pertaining to debt obligations by a sovereign entity (the City of Edinburgh) that contains a pari passu clause. The clause wording itself is very basic (\"rank pari passu\") but both the texture of the case and the consequent related possible interpretation of pari passu would not be simplistic. While it may be hard to say for certain, this ancient pari passu (the \"oldest\" sovereign one on public record, seemingly) may be endowed with the intriguing characteristic of referring to inter-creditor payment parity, and not just legal rank parity (though, again, no explicit mention of payments appears in the clause text itself). If true, this would imply that at least some people saw pari passu as a promise to be paid equally, at the same time and possibly proportionally as the relevant others, long before New York judge Thomas Griesa embraced such interpretation in 2012 to the utter surprise and shock of most sovereign debt legal practitioners and scholars. If my elucubrations are correct, and that might be a long shot, we would have unearthed a primeval pari passu that´s endowed with a message that would be most unwelcome to most of today´s experts. If, as contract paleontologists posit, the key to understanding pari passu is to find its original meaning, the 19th century Edinburgh version may not be possesed with the most instructive purport.","PeriodicalId":44862,"journal":{"name":"American Bankruptcy Law Journal","volume":"21 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2015-09-19","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"84542867","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 Legislation of Argentina on its Sovereign Debt","authors":"Eugenio A. Bruno","doi":"10.2139/SSRN.2657219","DOIUrl":"https://doi.org/10.2139/SSRN.2657219","url":null,"abstract":"This article examines (i) the Argentine legislation relating to the management of its sovereign debt including the application of such regulatory framework to the default of 2001 and the Debt Exchanges as a background of the legal norms that will be needed in connection with the negotiation and resolution of the debt in default with the holders of the defaulted bonds (“Holdouts”) and the regularization of the payment of the bonds issued under the Debt Exchanges; (ii) the intersection between the legal architecture of the 2005 Debt Exchange and the court decisions in the NML v The Republic of Argentina case; and (iii) what specific legislative steps should be taken in order to restructure the Argentine debt in default.","PeriodicalId":44862,"journal":{"name":"American Bankruptcy Law Journal","volume":"8 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2015-09-07","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"80164818","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 Methods of Comparative Corporate Law","authors":"M. Siems","doi":"10.2139/ssrn.2593420","DOIUrl":"https://doi.org/10.2139/ssrn.2593420","url":null,"abstract":"In the growing literature on comparative corporate law there is often a lack of consideration to the recent advances made in the general field of comparative law. This chapter aims to fill this gap. It outlines a conceptual framework that shows how seven core themes of comparative law can be linked to research on comparative corporate law. Subsequently, it explains these seven topics in more detail, also distinguishing between research approaches that have a legal focus and those that follow a more interdisciplinary perspective. The conclusion suggests that there is a need to overcome not only the disconnection between comparative and corporate law research but also between legal and interdisciplinary perspectives of comparative corporate law.","PeriodicalId":44862,"journal":{"name":"American Bankruptcy Law Journal","volume":"11 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2015-08-20","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"83477690","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}