Open Access. Powered by Scholars. Published by Universities.®
- Institution
-
- University of Tennessee College of Law (24)
- University of Pennsylvania Carey Law School (8)
- University of Michigan Law School (7)
- The Peter A. Allard School of Law (3)
- Maurer School of Law: Indiana University (2)
-
- Singapore Management University (2)
- St. John's University School of Law (2)
- University of Baltimore Law (2)
- University of Maryland Francis King Carey School of Law (2)
- Columbia Law School (1)
- Cornell University Law School (1)
- Florida International University College of Law (1)
- Florida State University College of Law (1)
- Fordham Law School (1)
- University of Georgia School of Law (1)
- University of Kentucky (1)
- Western University (1)
- Publication Year
- Publication
-
- Chapter 11 Bankruptcy Case Studies (24)
- All Faculty Scholarship (10)
- Articles (4)
- Faculty Scholarship (4)
- All Faculty Publications (3)
-
- Articles by Maurer Faculty (2)
- Book Chapters (2)
- Faculty Publications (2)
- Research Collection Yong Pung How School Of Law (2)
- Bankruptcy Research Library (1)
- Cornell Law Faculty Publications (1)
- LLM Theses and Essays (1)
- Law & Economics Working Papers (1)
- Law Faculty Scholarly Articles (1)
- Law Publications (1)
- Scholarly Publications (1)
Articles 1 - 30 of 60
Full-Text Articles in Law
Modular Bankruptcy: Toward A Consumer Scheme Of Arrangement, John A. E. Pottow
Modular Bankruptcy: Toward A Consumer Scheme Of Arrangement, John A. E. Pottow
Law & Economics Working Papers
The world of international bankruptcy has seen increasing use of the versatile scheme of arrangement, a form of corporate reorganization available under English law. A key feature of the scheme is its modularity, whereby a debtor can restructure only a single class of debt, such as bond indentures, without affecting other debt, such as trade. This is the opposite of chapter 11 of the U.S. Bankruptcy Code’s comprehensive reckoning of all financial stakeholders. This article considers a novel idea: could the scheme be transplanted into the consumer realm? It argues that it could and should. Substantial benefits of more individually …
Enforceability Of Third-Party Releases In Foreign Proceedings Under Chapter 15, Anastasia Greer
Enforceability Of Third-Party Releases In Foreign Proceedings Under Chapter 15, Anastasia Greer
Bankruptcy Research Library
(Excerpt)
In our increasingly globalized world, cross-border insolvency proceedings brought under chapter 15 (herein "Chapter 15") of title 11 of the United States Code (the "Bankruptcy Code") are on the rise - with over 100 additional filings in 2020 alone. Third-party releases are provisions in bankruptcy plans intended to release non-debtors (including shareholders, directors, officers, and affiliates) from claims creditors hold against other members of their class. A third party release can "act as a complete release, waiver, and discharge of that party ... arising out of or in connection with the debtor and its plan of reorganization." While the …
Reverse Vesting Orders – Developing Principles And Guardrails To Inform Judicial Decisions, Janis P. Sarra
Reverse Vesting Orders – Developing Principles And Guardrails To Inform Judicial Decisions, Janis P. Sarra
All Faculty Publications
Reverse vesting orders (RVO) are a new tool being used by insolvency practitioners in Canada’s Companies’ Creditors Arrangement Act (CCAA) and other insolvency proceedings, where the debtor is not required to propose a restructuring plan and creditors are not permitted a vote on the going-forward strategy. The article starts from the premise that the court has authority to approve an RVO pursuant to sections 11 and 36 of the CCAA and the court’s general authority under the statute. However, it suggests that there must be exceptional circumstances for the court to be persuaded to bypass provisions of insolvency legislation aimed …
Implementing An Insolvency Framework For Micro And Small Firms, Aurelio Gurrea-Martinez
Implementing An Insolvency Framework For Micro And Small Firms, Aurelio Gurrea-Martinez
Research Collection Yong Pung How School Of Law
Micro-, small-, and medium-sized enterprises (MSMEs) represent the vast majority of businesses in most countries around the world. Despite the economic relevance of these firms, most insolvency jurisdictions do not provide adequate responses to MSMEs. Moreover, with a few exceptions, the academic literature on insolvency law has not traditionally focused on the treatment of MSMEs in insolvency. This article seeks to contribute to the debate by exploring the primary features and problems of MSMEs in insolvency as well as the weaknesses of the ordinary insolvency framework to deal with MSMEs. It also provides a general overview of the primary reforms …
To Stay Or Not To Stay? A Clash Of Arbitration And Insolvency Regimes, Darius Chan, Sidharrth B Rajagopal
To Stay Or Not To Stay? A Clash Of Arbitration And Insolvency Regimes, Darius Chan, Sidharrth B Rajagopal
Research Collection Yong Pung How School Of Law
In the wake of the global Coronavirus disease 2019 (COVID-19) pandemic, a rise in creditorinitiated winding-up proceedings is likely to be impending in coming years (See e.g., RCMA Asia Pte. Ltd. v. Sun Electric Power Pte. Ltd. [2020] SGHC 205). At the same time, geopolitical developments, such as the scale and ambition of Belt & Road Initiative projects, have raised questions over the issue of debt sustainability. Given the prevalence of arbitration clauses in modern international commercial and project agreements, the interplay and relationship between insolvency and dispute resolution, and especially arbitration, requires careful attention. While the intersections between the …
Bankruptcy For Banks: A Tribute (And Little Plea) To Jay Westbrook, David A. Skeel Jr.
Bankruptcy For Banks: A Tribute (And Little Plea) To Jay Westbrook, David A. Skeel Jr.
All Faculty Scholarship
In this brief essay, to be included in a book celebrating the work of Jay Westbrook, I begin by surveying Jay’s wide-ranging contributions to bankruptcy scholarship. Jay’s functional analysis has had a profound effect on scholars’ understanding of key issues in domestic bankruptcy law, and Jay has been the leading scholarly figure on cross-border insolvency. After surveying Jay’s influence, I turn to the topic at hand: a proposed reform that would facilitate the use of bankruptcy to resolve the financial distress of large financial institutions. Jay has been a strong critic of this legislation, arguing that financial institutions need to …
Fiduciary Principles In Bankruptcy And Insolvency, John A.E. Pottow
Fiduciary Principles In Bankruptcy And Insolvency, John A.E. Pottow
Book Chapters
This chapter examines fiduciary duties in bankruptcy and insolvency, focusing on the bankruptcy trustee’s duties, which are triggered by virtue of appointment in a case. It first provides a background on bankruptcy law in order to elucidate the doctrines and rules affecting fiduciary responsibilities in bankruptcy, citing a number of relevant provisions in the Bankruptcy Code. It then considers the fiduciary, non-fiduciary, and anti-fiduciary obligations of the trustee under the Bankruptcy Code before discussing the fiduciary duties of care and loyalty. In particular, it highlights bankruptcy-related issues raised by the duty of loyalty with respect to secured creditors, priority unsecured …
Flotsam, Financing And Flotation: Is Canada “Resolution Ready” For Insurance Company Insolvency?, Janis P. Sarra
Flotsam, Financing And Flotation: Is Canada “Resolution Ready” For Insurance Company Insolvency?, Janis P. Sarra
All Faculty Publications
Insurance represents almost 2 per cent of Canada’s gross domestic product (GDP), yet there is little public policy discussion regarding the viability of the companies that insure Canadians or about the policyholder protection and resolution regime that underpins the provision of these services. As new products and technology develop, and as the complexity of multinational insurance enterprises increases, new risks pose challenges for Canada’s oversight and policyholder protection regimes. This article provides an overview of the insolvency regime for insurers in Canada, focusing primarily on the federal regime as the exemplar of how Canadian regulators and the insurance industry have …
A Bridge Over Troubled Waters - Resolving Bank Financial Distress In Canada, Janis P. Sarra
A Bridge Over Troubled Waters - Resolving Bank Financial Distress In Canada, Janis P. Sarra
All Faculty Publications
Effective June 2017, Canada formalized its new resolution regime for “domestic systemically important banks”. This article examines the new resolution regime in the context of the early intervention program by the financial services regulator. The system offers a complex but integrated set of mechanisms to monitor the financial health of financial institutions, to intervene at an early stage of financial distress, and to resolve the financially distressed bank in a timely manner. Resolution is the restructuring of a financially distressed or insolvent bank by a designated authority. To “resolve” a bank is to use a series of tools under banking …
A Two-Step Plan For Puerto Rico, Clayton P. Gillette, David A. Skeel Jr.
A Two-Step Plan For Puerto Rico, Clayton P. Gillette, David A. Skeel Jr.
All Faculty Scholarship
Few still believe that Puerto Rico is capable of meeting all of its financial obligations and continuing to provide basic services. The territory is already in default, and conditions are rapidly deteriorating. Is there a way forward? We think there is. In this short article, we outline a two-part plan for correcting Puerto Rico’s most urgent fiscal and financial problems.
The first step is to create an independent financial control board that has authority over Puerto Rico’s budgets and related issues. Notwithstanding concerns that an externally imposed financial control board (FCB) may interfere with the decision making processes of democratically …
Disciplining Corporate Boards And Debtholders Through Targeted Proxy Access, Michelle M. Harner
Disciplining Corporate Boards And Debtholders Through Targeted Proxy Access, Michelle M. Harner
Faculty Scholarship
Corporate directors committed to a failed business strategy or unduly influenced by the company’s debtholders need a dissenting voice—they need shareholder nominees on the board. This article examines the bias, conflicts, and external factors that impact board decisions, particularly when a company faces financial distress. It challenges the conventional wisdom that debt disciplines management, and it suggests that, in certain circumstances, the company would benefit from having the shareholders’ perspective more actively represented on the board. To that end, the article proposes a bylaw that would give shareholders the ability to nominate directors upon the occurrence of predefined events. Such …
A No-Tribunal Sdrm And The Means Of Binding Creditors To The Terms Of A Restructuring Plan, Charles W. Mooney Jr.
A No-Tribunal Sdrm And The Means Of Binding Creditors To The Terms Of A Restructuring Plan, Charles W. Mooney Jr.
All Faculty Scholarship
The paper addresses two discrete but related and essential attributes of a sovereign debt restructuring mechanism (SDRM). It first considers the merits and feasibility of an SDRM that would provide a procedure for proposing and adopting a restructuring plan for a sovereign debtor’s debt which would not involve any tribunal or administrator (a No-Tribunal SDRM). The No-Tribunal SDRM would undertake the restructuring as if the sovereign debtor and its creditors were subject to the Model CAC regime. In addition to embodying a novel and interesting structure for an SDRM—and one that eliminates the difficult hurdle of identifying a satisfactory tribunal—adoption …
A Framework For A Formal Sovereign Debt Restructuring Mechanism: The Kiss Principle (Keep It Simple, Stupid) And Other Guiding Principles, Charles W. Mooney Jr.
A Framework For A Formal Sovereign Debt Restructuring Mechanism: The Kiss Principle (Keep It Simple, Stupid) And Other Guiding Principles, Charles W. Mooney Jr.
All Faculty Scholarship
Given the ongoing work on a multilateral restructuring process for sovereign debt in the UN, consideration of the content and implementation of a sovereign debt restructuring mechanism (SDRM) is timely. The framework and content of the SDRM proposed here differs from earlier proposals in several important respects. For the classification and supermajority voting of claims in the approval a restructuring plan, it would mimic the structure and operation of the model collective action clauses (Model CACs) proposed by the International Capital Markets Association. Restructuring under a qualified sovereign debt restructuring law (QSDRL) would be guided by four principles: (i) observe …
Bankruptcy And Education, Keith Sharfman
Bankruptcy And Education, Keith Sharfman
Faculty Publications
(Excerpt)
Bankruptcy law interacts with education law in a number of respects. A bankrupt educational institution loses access to student financial aid, and its accreditation status is excluded from the bankruptcy estate. Actions by accreditation agencies against bankrupt educational institutions are not subject to the automatic stay. And absent a showing of undue hardship, student loans are not dischargeable in bankruptcy.
The exceptional treatment of educational institutions and their students in bankruptcy reflects a fundamental tension between the goals of bankruptcy law on the one hand and education policy on the other. While bankruptcy law generally seeks to maximize value …
What Is A Lien? Lessons From Municipal Bankruptcy, David A. Skeel Jr.
What Is A Lien? Lessons From Municipal Bankruptcy, David A. Skeel Jr.
All Faculty Scholarship
From the outset of Detroit’s bankruptcy, an unlikely set of issues kept coming up: What exactly is a lien? Who has a property interest or its equivalent in bankruptcy? Did general obligation bondholders have special status, due to Detroit’s promise to use its “full faith and credit” for repayment? What about Detroit’s pension beneficiaries, who could point to a provision in the Michigan Constitution stating that accrued pension benefits cannot be diminished or impaired. In this Article, I explore these and related issues that have arisen in Detroit and other recent municipal bankruptcy cases.
Part I of the Article briefly …
The Bankruptcy Code’S Safe Harbors For Settlement Payments And Securities Contracts: When Is Safe Too Safe?, Charles W. Mooney Jr.
The Bankruptcy Code’S Safe Harbors For Settlement Payments And Securities Contracts: When Is Safe Too Safe?, Charles W. Mooney Jr.
All Faculty Scholarship
This Article addresses insolvency law-related issues in connection with certain financial-markets contracts, such as securities contracts, commodity contracts, forward contracts, repurchase agreements (repos), swaps and other derivatives, and master netting agreements. The Bankruptcy Code provides special treatment—safe harbors—for these contracts (collectively, qualified financial contracts or QFCs). This special treatment is considerably more favorable for nondebtor parties to QFCs than the rules applicable to nondebtor parties to other contracts with a debtor. Yet even some strong critics of the safe harbors concede that some special treatment may be warranted. This Article offers a critique of the safe harbor for settlement payments, …
Is Bankruptcy The Answer For Troubled Cities And States?, David A. Skeel Jr.
Is Bankruptcy The Answer For Troubled Cities And States?, David A. Skeel Jr.
All Faculty Scholarship
The financial crisis that has afflicted America’s cities and states for the past decade is far from over. Under existing U.S. law, distressed municipalities can file for bankruptcy if their state permits this, as roughly half do. The states themselves do not have a bankruptcy option, however, no matter how bleak their circumstances may be. There have recently been dramatic developments in the handling of municipal distress. Several cities have filed for bankruptcy under Chapter 9, which, although adequate for sewer and water districts or a very small town, has conventionally been deemed irrelevant for real cities and municipalities. Additionally, …
Reader's Digest, Walter Machnicki
Reader's Digest, Walter Machnicki
Chapter 11 Bankruptcy Case Studies
No abstract provided.
Mesa Airlines, Brittany Brent, Lindy Harris
Mesa Airlines, Brittany Brent, Lindy Harris
Chapter 11 Bankruptcy Case Studies
No abstract provided.
Solyndra, Brandon Brewer, Matthew Kinsey, Anthony Mendenhall
Solyndra, Brandon Brewer, Matthew Kinsey, Anthony Mendenhall
Chapter 11 Bankruptcy Case Studies
No abstract provided.
In Re Jazz Photo Corp., Archie Carden, Cory Swainston
In Re Jazz Photo Corp., Archie Carden, Cory Swainston
Chapter 11 Bankruptcy Case Studies
No abstract provided.
In Re Adelphia Communications Corp., Hilari Sheffield, Adam Smith
In Re Adelphia Communications Corp., Hilari Sheffield, Adam Smith
Chapter 11 Bankruptcy Case Studies
No abstract provided.
New Era Bankruptcy, Holly N. Mancl
New Era Bankruptcy, Holly N. Mancl
Chapter 11 Bankruptcy Case Studies
No abstract provided.
The Bankruptcy Of D & K Aviation, T J. Hatter, Maurice Echols, Michael Mason
The Bankruptcy Of D & K Aviation, T J. Hatter, Maurice Echols, Michael Mason
Chapter 11 Bankruptcy Case Studies
No abstract provided.
The Bankruptcy Of Golfers' Warehouse, Inc.: A Lesson In How To Sell A Business In Chapter 11, Briton Collins, Will Smith, David Choi
The Bankruptcy Of Golfers' Warehouse, Inc.: A Lesson In How To Sell A Business In Chapter 11, Briton Collins, Will Smith, David Choi
Chapter 11 Bankruptcy Case Studies
No abstract provided.
Independence Air, Kara West, Patrick Woodside
Independence Air, Kara West, Patrick Woodside
Chapter 11 Bankruptcy Case Studies
No abstract provided.
Lambuth, Jennifer Crake, Zackarij Gradner, Scott Mcleod
Lambuth, Jennifer Crake, Zackarij Gradner, Scott Mcleod
Chapter 11 Bankruptcy Case Studies
No abstract provided.
Movie Gallery, Cornell Kennedy, Phylinda Ramsey, Kevin Rayburn
Movie Gallery, Cornell Kennedy, Phylinda Ramsey, Kevin Rayburn
Chapter 11 Bankruptcy Case Studies
No abstract provided.
The Story Of Kmart's Reorganization, John Fisher, Justin Wolbert
The Story Of Kmart's Reorganization, John Fisher, Justin Wolbert
Chapter 11 Bankruptcy Case Studies
No abstract provided.
Drug Fair Group, Inc., Robby Lockett, Scott Lochridge, Jessica Manning
Drug Fair Group, Inc., Robby Lockett, Scott Lochridge, Jessica Manning
Chapter 11 Bankruptcy Case Studies
No abstract provided.