Can innovative reforms and practices efficiently resolve financial distress?

Elsevier, Journal of Cleaner Production, Volume 140, Part 3, 1 January 2017, Pages 1860-1871
Authors: 
Nirjhar Nigam, Afef Boughanmi

Abstract

The last few years have seen a phenomenal upsurge in the number of corporate bankruptcies. The vulnerabilities that were lying dormant within contemporary bankruptcy regimes suddenly became apparent, causing concerns within the international corporate community. Consequently, researchers, practitioners, and policy makers from all over the world became actively engaged in emphasizing the importance of efficient bankruptcy reforms to promote a rescue culture. The primary objective of an insolvency framework should be to provide quick, transparent, and cost-effective solutions for resolving financial distress and promoting a synergetic environment conducive to the proliferation of healthy debt repayment practices, increased trust factors between creditors and debtors, and a better survival rate for viable businesses. In this paper, we present a qualitative review of various insolvency reforms introduced in several countries between 2005 and 2013 for efficiently resolving financial distress. We delve into a discussion of the prevalent practice of resolving distress through the courts (formal procedure) or out of the courts (private workout) settlements, the supporting literature, and the limitations involved in the process. Overall, our goal was to summarize and synthesize empirical data and highlight the strengths and weaknesses of the proposed insolvency reforms to provide a better understanding of common ways of resolving financial distress. The data shows evidence that several countries have improved their bankruptcy ranking (doing business reports) by empowering creditors (by expanding their rights under bankruptcy), speeding up court procedures, promoting out-of-court procedures, and regulating insolvency practitioners. Lastly, we adopt a normative approach by proposing a list of legal changes that should drive legislators' actions in order to provide sustainable ways for resolving distress (e.g., transparency, early filling, extension of floating charges, electronic management of bankruptcy files, etc.).

Keywords

Bankruptcy law; Financial distress; Out-of-court settlements; IInnovative reforms; Liquidation; Reorganization