The legal status of depositors and the manner in which their claims are met are the subject of close research. The problem of bail is little studied in Russian doctrine. The purpose of the present ...study is to formulate, on the basis of regulation and doctrinal thinking in Germany, where the right to a bond of arrest has been successfully applied, a framework for the exercise of the right of a bond of arrest in insolvency proceedings (bankruptcy) for Russian legislation. The main methods of the study are: Comparative law, which allows the study of the theoretical provisions of the right to bail and the proposal of appropriate legislative designs; as well as the historical-legal method combined with the systematic method of analysis of the problem under investigation. Synthesis, interpretation and teleological methods are also used. The German experience of the legal regulation of a creditor whose claims are secured by the seizure of property has been used in the analysis of the problems of a bond of arrest. The legal nature of the right to bail, which is the subject of debate in the doctrine of Germany and Russia, has been analysed. It has been concluded that the right to an arrest bond is a special right of bail, together with a contractual and legal bond. It is substantiated that there is a gap in Russian law regarding the legal position of a creditor in insolvency proceedings (bankruptcy) in the event of securing his claims by seizure of the debtor’s property. It is considered to be a breach of the balance between public and private interests. It is justified that the right to a bond of arrest is subject to the law of procedural law and proposals have been made to regulate the legal position of creditors entitled to a bond of arrest in insolvency proceedings (bankruptcy).
The rights and duties of the director in entrepreneurial activities are regulated by both the 1994 and 2021 editions of the Law of Georgia “On Entrepreneurs”. The powers assigned to him/her include ...leadership and representation of the entrepreneurial company. The legal relations of the director often goes beyond the scope of corporate law. Accordingly, the rights and duties established by other fields of law apply to him. One of them is the law of insolvency, which provides for the director’s involvement in such a regime as the rehabilitation regime. In the paper, the role of the director is considered within the framework of the regulation of the law of insolvency, the rehabilitation regime, which is regulated by the law of insolvency. In addition to reacting to the imperatively determined action, the law obliges the director to assess the evaluable and foreseeable circumstances and to take appropriate action on it. The topic is relevant and interesting, because in addition to the civil liability towards the director, criminal liability may also be considered. In order to properly discuss the topic provided by the article, the laws on Insolvency Procedings and on Rehabilitation and Collective Satisfaction of Creditors are compared with each other. Decisions/rulings of the general courts of Georgia have been used in the paper in order to clarify the position of the court regarding the issue. And, in certain cases, the legal norms of different countries and foreign language literature are cited in the article for the purpose of making a comparison.
In many common law jurisdictions, the common law power of courts to grant assistance in respect of foreign insolvency proceedings exists independently of statute. The nature of the power, however, ...continues to generate debate. Obiter dicta of the Privy Council suggests that no assistance is available where the foreign proceeding is a voluntary winding‐up. This article evaluates the position by reference to Singapore and Hong Kong decisions and concludes that a refusal to grant assistance in circumstances involving an insolvent voluntary winding‐up is inconsistent with the principle of modified universalism and that a broader recognition test should be adopted.
Die Organhaftung zeigt eine beweisrechtliche Besonderheit: Nicht die Gesellschaft muss die Pflichtverletzung beweisen, sondern das Organmitglied muss sich nach § 93 Abs. 2 Satz 2 AktG (analog) ...entlasten. Die Beweislastumkehr wirft in der Praxis eine Reihe von Problemen auf, und auch ihre theoretische Fundierung harrte bislang einer abschließenden Klärung. Nadja Danninger beleuchtet das Thema nach einer beweisrechtlichen Einführung aus fünf Blickwinkeln: Rechtsgeschichte, Rechtsdogmatik, Rechtspraxis, Rechtsvergleichung und Rechtspolitik. Die Verfasserin legt die römisch-rechtlichen Wurzeln ebenso frei wie die höchst unterschiedliche Behandlung der Beweislastfrage in 15 untersuchten Rechtsordnungen. Neben der Analyse der Theorie untersucht sie ausgewählte praktische Konstellationen und zeigt damit auf, wie der beweisrechtliche Balanceakt in Theorie und Praxis gelingen kann.
Die Organhaftung zeigt eine beweisrechtliche Besonderheit: Nicht die Gesellschaft muss die Pflichtverletzung beweisen, sondern das Organmitglied muss sich nach § 93 Abs. 2 Satz 2 AktG (analog) entlasten. Die Beweislastumkehr wirft in der Praxis eine Reihe von Problemen auf, und auch ihre theoretische Fundierung harrte bislang einer abschließenden Klärung. Nadja Danninger beleuchtet das Thema nach einer beweisrechtlichen Einführung aus fünf Blickwinkeln: Rechtsgeschichte, Rechtsdogmatik, Rechtspraxis, Rechtsvergleichung und Rechtspolitik. Die Verfasserin legt die römisch-rechtlichen Wurzeln ebenso frei wie die höchst unterschiedliche Behandlung der Beweislastfrage in 15 untersuchten Rechtsordnungen. Neben der Analyse der Theorie untersucht sie ausgewählte praktische Konstellationen und zeigt damit auf, wie der beweisrechtliche Balanceakt in Theorie und Praxis gelingen kann.
The author briefly comments on various measures undertaken in order to mitigate the effects of the extraordinary situation in connection with the pandemic of SARS-CoV-2 and seeks to put them into the ...context of the available data. In this connection, the paper mainly focuses on corporate insolvency filings, extraordinary moratoria and suspension of loan repayments. The author also briefly describes the future outlook.
The resolution of bankruptcy disputes in Indonesia presents significant challenges due to the ease with which bankruptcy can be filed against debtors, even if they are capable of continuing their ...business operations and repaying their debts to creditors. This issue arises from the provisions of Article 2, paragraph (1) of Law 37/2004, which stipulate only two requirements for declaring bankruptcy: the existence of a past due debt and the presence of at least two creditors. This paper aims to examine the problems associated with bankruptcy dispute resolution in Indonesia and to propose the implementation of an insolvency test mechanism as a prerequisite before a Commercial Court judge can issue a bankruptcy ruling. Additionally, the study offers a comparative analysis of the insolvency test mechanisms employed in several countries, including the Netherlands, Germany, the United States, and the United Kingdom. Utilizing a doctrinal approach, this legal research analyzes primary and secondary literature by reviewing laws and regulations pertinent to the issues at hand. The findings of this study suggest that adopting an insolvency test is a crucial policy for the bankruptcy law framework in Indonesia. The implementation of such a test could prevent the bankruptcy of debtors who are still capable of fulfilling their financial obligations. Consequently, there is a need to revise Law 37/2004 to incorporate a legal instrument for the insolvency test.
This paper evaluates how the risks associated with mergers and acquisitions (M&As) affect Bank Holding Companies’ (BHCs) levels of insolvency risk. Bank insolvency is hypothesized to be affected by ...M&As directly and indirectly through banks’ market risk, geographical diversification, and activity diversification. The relationship between bank insolvency, diversification, and market risk is estimated as a system using the Generalized Method of Moments (GMM). The key finding is that M&As erode banks’ insolvency, both directly and indirectly through the effects associated with their geographical diversification.
We have proposed to carry out this article starting from the premise of a transdisciplinary research, reflecting an analysis of insolvency law as "metamorphosed" by the conglomerate of social, ...economic and political elements and events, which, in reality, permanently "roll" this "legislative snowball" found in the dynamics of globalization and Europeanization, context in which the classical branches of law are resized by acquiring mixed characteristics. The penetration into the realm of transdisciplinarity reflects nothing but the need to adapt the norms of law to the diversity and dynamism of developments, "mutations"and global challenges. The core of our research concerns insolvency law, a law that has reached the stage of remodeling in a global economic context, being permanently "imprinted"by international and regional legal instruments. Enjoying a "thirsty" field of accelerated reform, we will try to synthesize legislative novelties such as the proposal of EU Directive on the harmonisation of certain aspects of insolvency law and we will explore restructuring benchmarks in the USA, India, Dominican Republic or Saudi Arabia, with often "crossed" visions on insolvency regimes, in order to outline the international picture of the restructuring market in 2023 but also the prospects for 2024, in the idea of identifying coherent measures capable of mitigating the socio-economic consequences at the intersection of contemporary crises, crises that have profoundly changed the approach of the insolvency field. Last but not least, we will stop at one of the key dimensions of the new directive on the EU agenda, namely the creation of a special insolvency legal regime for SMEs, already outlined internationally by UNCITRAL. Beyond the draft directive still on the negotiating table and uncertainties, an initiative that is part of the Commission's priority objective of strengthening the capital markets union (CMU) with the motto "Make the outcome of cross-border investments more predictable in terms of insolvency proceedings", beyond the effervescence of international and European insolvency legal instruments, we must reflect on the importance of divergences in the regulatory approach to insolvency as an obstacle to cross-border investments, a firm concern and commitment being needed in order to harmonize legislation and streamline national insolvency procedures insolvency. Let us not forget that effective and harmonised insolvency rules support efficient capital allocation, economic recovery from recessions and therefore economic growth in each country, with insolvency being a key criterion for cross-border investors.
PDF
