Schuldeiserscontrole over het bestuur van financieel noodlijdende ondernemingen : een rechtsvergelijkende en rechtseconomische analyse

In the continental legal systems, the management of a financially healthy company is controlled by the majority or reference shareholders. After all, the shareholders have the best incentives to ensure that the company makes a profit and does not become insolvent. When profits are made, the shareholders see an increase in the value of their shares, possibly accompanied by a higher dividend payment. In the event of loss or insolvency, their shares are structurally subordinated, which means that the shareholders are paid out of the proceeds of the company's liquidation only after all creditors have been paid. In other words, the shareholders are the residual owners. Once the company runs into financial difficulties or is threatened by insolvency, the residual ownership shifts from the shareholders to the creditors. In spite of this shift, relatively few changes in governance take place. In the absence of the initiation of a formal insolvency procedure, the debtor (i.e. the majority shareholders) remains formally in control. A similar approach is taken in Belgian reorganisation procedures: in principle, the debtor retains the power of decision and control (debtor-in-possession), although there is statutory control by the creditors and the judge (e.g. in the voting and confirmation stage). A drastic shift in governance does not take place until the commencement of a liquidation proceeding, in which case the liquidator replaces the debtor-in-possession, under the supervision of the insolvency court and supervisory judge ("juge-commissaire"). Unlike in company law, a systematic analysis and justification of the allocation of control rights in financially distressed companies, including companies in insolvency proceedings, is absent today. Several authors have, however, already criticised the overly limited control rights of creditors over the management of financially distressed companies. With the help of comparative law and economics, this dissertation examines how the control rights of creditors over the management of companies in financial difficulties, including companies in insolvency proceedings, can be moulded into an efficient governance mechanism.

Jaar van publicatie:2021

Toegankelijkheid:Closed