The reservation of title is a popular credit security instrument in numerous legal systems. If the sales contract lacks an effective reservation of title clause, the crediting seller sometimes tries ...to remedy this deficiency retrospectively: He declares at the time of handover that ownership does not pass to the buyer - contrary to the legal rule (§ 1063 ABGB) - until the purchase price has been paid in full. If the buyer does not agree to this request for a subsequent amendment of the contract, this is referred to as a unilaterally declared retention of title.
Der Eigentumsvorbehalt erfreut sich als Kreditsicherungsinstrument in zahlreichen Rechtsordnungen großer Beliebtheit. Fehlt es dem Kaufvertrag an einer wirksamen Vorbehaltsabrede, versucht der kreditierende Verkäufer in der Rechtspraxis mitunter, diesen Mangel nachträglich, das heißt im bereits perfekt gewordenen Vertrag zu sanieren, indem er bei Übergabe erklärt (typischerweise durch einen Vermerk auf Lieferschein oder Faktura), das Eigentum an der übergebenen Sache solle – entgegen der gesetzlichen Regel (§ 1063 ABGB) – nicht vor vollständiger Bezahlung des Kaufpreises auf den Käufer übergehen. Stimmt der Käufer diesem Angebot auf nachträgliche Vertragsänderung nicht zu, spricht man vom einseitig erklärten Eigentumsvorbehalt.
•The paper investigates the effect of reforms of insolvency regulations on cross-border debt and equity positions.•Investors prefer to invest more in countries with more efficient insolvency ...frameworks.•The effect differs across sectors, with institutional investors’ investment in equity and banks’ investment in debt driving the results.•Shareholders are mostly responsive to prevention and streamlining tools, while debt-holders respond more to availability of restructuring tools.•Countries with developed financial markets and effective government are the ones that see the largest debt and equity inflows after reforms of insolvency regulations.•These findings have important policy implications for capital market integration in Europe, justifying setting up of minimum standards for insolvency procedures across the EU Member States.
This paper investigates the effect of insolvency regulation reforms on cross-border debt and equity investments at aggregate and sectoral levels. Using disaggregated data from the ECB’s Securities Holdings Statistics by Sector (SHSS) database and the OECD indicators on efficiency of insolvency regulations, we find that investors increase their debt and equity holdings in the countries that undertook reforms of insolvency regulations and whose insolvency framework improved thereafter. The effect differs across sectors, with investments of institutional investors in equity and investments of banks in debt being particularly sensitive. In addition, shareholders are mostly responsive to prevention and streamlining tools, while debt holders respond more to availability of restructuring tools. Finally, we show that reforms of insolvency regulations are particularly effective in increasing cross-border debt and equity investments when the quality of insolvency regulations in holder and issuer countries is relatively similar, arguing for potential benefits of harmonizing insolvency regulations.
Under English law, directors’ duties change in the vicinity of insolvency so as to require enhanced regard for creditors’ interests: that is the rule in West Mercia Safetywear v Dodd. This rule is ...conventionally analysed as a constraint on directors deploying assets in risky ventures in insolvency. However, a review of the case law shows that the rule performs a very different function: the regulation of payments to creditors in the lead-up to insolvency proceedings. On its own, the rule functions as an alternative to a preference action, providing recourse against the director who authorised the payment, rather than against the payee. Combined with accessory liability rules, the rule can also function as a substitute for a preference action, providing a different way of obtaining recourse against the payee. The first of these functions, however, raises a serious remedial problem—acknowledged by the courts—that appears ripe for consideration at an appellate level.
China has long been under external pressure to develop a market-based approach to bankruptcies and reduce state involvement in such cases. The enactment of the Enterprise Bankruptcy Law 2006 was an ...important first step in this regard but laws are insufficient in themselves to bring about such an approach and this Act has given rise to a very low number of cases, attributed in part to ongoing state influence. This article examines the reasons for the law's limited impact, paying particular attention to the role of the state, which appears to be changing.
A recent decision of the Romanian High Court of Justice dated 6 March 2019 offers the possibility to analyse the recovery of the prejudice caused to a creditor by a company under court proceedings ...after on its insolvency. The applicable regulations (i.e. Law no. 85/2015) represent the legal framework, which aims at debt payment by the insolvent debtor to his creditors. Therefore, the procedure is collective and all the known creditors are involved. Consequently, the law regulates the means and the conditions of this procedure. The prejudice caused to a creditor by the insolvent company shall be recovered following the rules of the special law and not through the general applicable rules, i.e. the Civil Code. The article aims to identify the relevant theoretical aspects and their applicability in practice by the courts of law.
China's Belt and Road Initiative (BRI) is having a transformative effect on infrastructure development and international trade. This strategic development reflects China's rapid emergence as a ...dominant player in the new international economic order and its competition with other major powers. It also reflects China's championing of globalization. The BRI program will inevitably affect the emerging body of international commercial law operating in the over 125 countries and 29 international organizations that have signed up to be part of the BRI. Although there are many legal issues that have been raised by these developments, this article examines the emerging shape of cross-border insolvency law on the maritime and overland 'Silk Roads'. Solvency problems are already emerging as serious concerns arising out of debts incurred through China's infrastructure investments under this initiative. To-date, only 24 BRI countries have to varying degrees implemented the United Nations Commission on International Trade Law (UNCITRAL) Model Law on Cross-Border Insolvency, creating a tension between territorial and more universalist approaches. In the short term, these insolvency issues are likely to be dealt with in a number of ways, such as by resorting to 'soft law' or by using administrative or political mechanisms. Given China's commitment to the rule of law (with Chinese characteristics), it is inevitable that efforts will be made to give some normative shape to this new global space. This article seeks to explore this emerging frontier for cross-border insolvency law.
In the context of the burgeoning Russian insolvency law, the applicable regulations may undergo essential changes over a bankruptcy period due to lengthy insolvency procedures. In such case, a ...pivotal question for the bankruptcy participants is the application of legal developments that significantly affect the participants’ scope of rights and obligations to the initiated procedure.
This study is aimed to develop and substantiate a unified procedure for the commencement of legal provisions governing the bankruptcy procedure.
The following tasks promote the above purpose:
1) Determining applied options of commencement of amendments to the Insolvency Law;2) Weighing strengths and weaknesses of the determined options;3) Concluding on the most suitable procedure for commencement of amendments in these legal relationships.
The analysis of amendments to the Insolvency Law highlights the absence of a legislator’s unified approach. The article outlines seven models of amendments commencement used by the legislator:
1) amendments to the Insolvency Law do not describe the commencement procedure, so the general rule applies here: entry into force after ten days upon the date of their official publication;2) amendments to the Insolvency Law explicitly specify the date of entry into force or the period on the expiry of which the amendments enter into force;3) amendments to the Insolvency Law enter into force on the day of their official publication;4) amendments to the Insolvency Law apply in bankruptcy cases in which proceedings are initiated after the date of the amendments commencement;5) amendments to the Insolvency Law single out a cluster of legal relationships (e.g. legal relationships in current costs accounting) to which the amendments apply immediately (which is an exception to the general term of amendments commencement);6) amendments to the Insolvency Law specify legal facts, given which a new version of the law shall or shall not apply; in particular, the legislator has used the following jural facts (1) the beginning of settlements with creditors of the third priority; (2) the completion of a monitoring procedure in relation to an indebted developer;7) amendments to the Insolvency Law imply an extension of new rules to earlier existing legal relationships.
Following the analysis of strengths and weaknesses of the given models the authors believe that a new legal regulation (if any) shall be recognized when the bankruptcy case moves from one procedure to another. At the date of transition, the current version of the law in force is determined, its reference indicated in the judicial act. This mechanism allows the parties to the legal relationship to know with certainty the legal assessment from the judicial act and to build on the new legal regulation in their line of conduct. In the event of a fundamental change in the law, the parties will be protected by the current procedure as a temporary safeguard.
This will make the bankruptcy procedure foreseeable for the parties and prevent unpredictable risks that did not exist at the initiation of the bankruptcy proceedings.
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