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An Innovative Framework: Evaluating The New German Business Stabilization And Restructuring Law (Starug), Andreas Rauch

Northwestern Journal of International Law & Business

This comment examines the restructuring framework, restrukturierungsgesetz (“StaRUG”), and argues that this new law represents an effective—albeit radical—departure from Germany’s previous, conservative insolvency regime. Passed in response to a 2019 EU Directive aimed at modernizing restructuring law Union-wide, and integrated into the German legal system against the backdrop of the COVID-19 pandemic, StaRUG and its ancillary reforms in other areas of German law create a restructuring proceeding that places a premium on a debtor’s continued business operations. Thus, in a striking shift from the traditional German approach to business distress, which strongly emphasized creditor rights, the new StaRUG focuses on …

Bankruptcy On The Side, Kenneth Ayotte, Anthony J. Casey, David A. Skeel Jr.

Northwestern University Law Review

This Article provides a framework for analyzing side agreements among stakeholders in corporate bankruptcy, such as intercreditor and “bad boy” agreements. These agreements are controversial because they commonly include a promise by a stakeholder to remain silent—to waive some procedural right they would otherwise have under the Bankruptcy Code—at potentially crucial points in the reorganization process.

Using simplified examples, we show that side agreements create benefits in some instances. But, in other cases, parties to a side agreement may attempt to extract value from nonparties to the agreement by contracting for specific performance or excessive stipulated damages that impose negative …

Betting On The Upside: Why Affirming River Road Favors Distressed Debt Speculators Over The Rehabilitation Of Businesses, Julia L. Onorato

Northwestern University Law Review

The Chapter 11 bankruptcy process demands a careful balance between protecting the creditors’ rights to be repaid and allowing a failing entity the ability to restructure. The Supreme Court in RadLAX Gateway Hotel affirmed the Seventh Circuit’s holding in River Road and interpreted the Bankruptcy Code in a way that improperly shifts this balance towards the most senior creditors at the expense of business. This Note will analyze the circuit disagreement over the cramdown provision in the Bankruptcy Code and the Supreme Court’s ultimate resolution. It will argue that in light of recent trends in the credit markets - including …

Choosing The "Per-Debtor" Approach To Plan Confirmation In Multi-Debtor Chapter 11 Proceedings, Suzanne T. Brindise

Northwestern University Law Review

No abstract provided.

Shedding Light On Article 1110 Of The North American Free Trade Agreement(Nafta)Concerning Expropriations: An Environmental Case Study, Jason L. Gudofsky

Northwestern Journal of International Law & Business

By focusing on the provision of Chapter 11 that has elicited the most fervent debate, namely Article 1110 concerning expropriations, this paper attempts to pick through the verbiage regarding, and shed light on, the meaning of Article 1110. To illustrate the discussion, the acquisition of MacMillan Bloedel Limited ("MB"), the then largest forest company in Canada, by Weyerhaeuser Company ("Weyerhaeuser") on November 1, 1999 to create a major global forest company (the "MB Acquisition") is examined.