Dissertationen zum Thema „Insolvency“

The aim of this thesis is the definition of reorganization as a way of resolving insolvency in the Czech Republic according to the Act no. 182/2006, about bankruptcy and its solution (Insolvency Act). Theoretical and practical part is divided into basic thematic and logically interrelated units that provide a comprehensive description and information relating to the characteristics of basic terms, a description of the insolvency proceedings, the definition of reorganization, the establishment and implementation of the reorganization plan and the application of reorganization on the company Pilsen Steel s.r.o. The work is divided into theoretical and practical part. Descriptive and analytical methods are used to meet the objective of the thesis.

This thesis investigates the problem of commencement of insolvency proceedings, content of an insolvency petition, the effects of insolvency proceedings and the decission about insolvency petition. In connection with the filing of insolvency petition focuses on issues of international jurisdiction. The paper also analyzed the empirical data relating to insolvency proposals. The aim is examining whether the current legal system of commencement insolvency proceedings can be misuse and whether the legal framework of international jurisdiction can be misuse. There are also examine various possibilities of misuse legislation. Also, the thesis focuses on the possible regulatory considerations.

The aim of this thesis is to analyze both legislation relating to reorganization pursuant to Act No. 182/2006 Coll., Bankruptcy and Settlement (Insolvency Act), as amended, and reorganization from the economic perspective (e.g. the time needed to reorganize, the yield for the creditors compared to bankruptcy). The thesis also gives an analysis of the companies which were allowed reorganization by the court between 2008 and 2011. In the analysis the length of reorganization is identified, the size of turnover and number of employees are discovered, etc. The methods used in the thesis are mainly the descriptive analytical method, evaluation and comparison method. The main source of information was the data of the reorganized companies published in the insolvency register. The results of the analysis can lead to the conclusion that reorganization is better than bankruptcy for creditors, mainly because of its speed and the size of the yield, however, creditors must take some risks, which they should try to eliminate.

In light of the new Basel Capital Accord, Small and medium size enterprises (SMEs) play a fundamental role in the economic performance of major economies. Several lending communities proposed to treat SMEs as retail clients to optimize capital requirements and profitability. In this context, it is becoming critically important to have a detailed understanding of its risk behavior for appropriate pricing of credit risk. Thus, this thesis presents four essays on SMEs insolvency risk starting from chapter 3 through chapter 6 that investigates different dimensions of their default risk. My first essay makes distinction among SMEs that report operating cash flow and those which do not while modeling their default risk. However, I do not report any significant improvement in model’s classification performance when operating cash flow information is made available. Similarly, my second essay considers domestic and international SMEs separately while modelling their default risk and report almost identical classifications performance of the models’ developed for both the groups. The third essay compares the default risk attributes of micro, small and medium-sized firms respectively with SMEs. Test results suggest significant difference in the default risk attributes of only micro firms and SMEs. On a different line, my fourth essay deals with the methodological issues that have been witnessed recently in the bankruptcy literature that use hazard models for making bankruptcy predictions. This essay highlights the critical issues and provides appropriate guidance for the correct use of hazard models in making bankruptcy predictions. Here, I also propose a default definition for SMEs which considers both legal bankruptcy laws and firms’ financial health while defining the default event. Empirical results show that my default definition performs significantly better than its respective counterparts in identifying distressed firms with superior goodness of fit measures across all econometric specifications. Detailed abstract of respective essays are as follows. Evidence pertaining to SMEs financing strongly motivates me to believe that firms which are unable to generate sufficient operating cash flow (OCF) are more susceptible to bankruptcy. However, the role of OCF in bankruptcy of SMEs lacks empirical validation. Thus, my first essay (chapter 3) investigates the role of operating cash flow information as predictors in assessing the creditworthiness of SMEs. One-year distress prediction model developed using significant financial information of United Kingdom SMEs over a period of 2000 to 2009 confirm that the presence of operating cash flow information does not improve the prediction accuracy of the distress prediction model. My second essay (chapter 4) considers domestic and international small and medium-sized enterprises (SMEs) of the United Kingdom separately while modelling their default risk. To establish the empirical validation, separate one-year default prediction models are developed using dynamic logistic regression technique that encapsulates significant financial information over an analysis period of 2000 to 2009. Almost an identical set of explanatory variables affect the default probability of domestic and international SMEs, which contradicts the need for separate default risk models. However, the lower predictive accuracy measures of the model developed for international SMEs motivate me to compare the weights of regression coefficients of the models developed for domestic and international firms. Test results confirm that four out of the nine common predictors display significant statistical differences in their weights. However, these differences do not contribute to the discriminatory performance of the default prediction models, given that I report very little difference in each model’s classification performance. A huge diversity exists within the broad category of Small and medium size enterprises (SMEs). They differ widely in their capital structure, firm size, access to external finance, management style, numbers of employees etc. Thus, my third essay (chapter 5) contributes to the literature by acknowledging this diversity while modeling credit risk for them, using a relatively large UK database, covering the analysis period between 2000 and 2009. My analysis partially employs the definition provided by the European Union to distinguish between ‘micro’, ‘small’, and ‘medium’ sized firms. I use both financial and non-financial information to predict firms’ failure hazard. I estimate separate hazard models for each sub-category of SMEs, and compare their performance with a SMEs hazard model including all the three sub-categories. I test my hypotheses using discrete-time duration-dependent hazard rate modelling techniques, which controls for both macro-economic conditions and survival time. My test results strongly highlight the differences in the credit risk attributes of ‘micro’ firms and SMEs, while it does not support the need to consider ‘small’ and ‘medium’ firms’ category separately while modelling credit risk for them, as almost the same sets of explanatory variables affect the failure hazard of SMEs, ‘small’ and ‘medium’ firms. My fourth essay (chapter 6) considers all serious and neglected concerns while developing discrete and continuous time duration dependent hazard models for predicting failure of US SMEs. I compare theoretical and classification performance aspects of three popular hazard models, namely discrete hazard models with logit and clog-log links and the extended Cox model. I report that discrete hazard models are superior to extended Cox models in making default predictions. I also propose a default definition for SMEs which considers both legal bankruptcy laws and firms’ financial health while defining the default event. My empirical results show that my default definition performs significantly better than the default definitions which are only based on legal consequence or firms’ financial health in identifying distressed firms. In addition, my default definition also shows superior goodness of fit measures across all econometric specifications.

What human rights or fundamental rights of stakeholders do insolvency norms and laws affect? Will a human rights perspective help in striking a balance between the affected stakeholders? These are the primary questions addressed in this thesis. The idea that human rights values are relevant to he theoretical discussion about insolvency policy is relatively novel. Insolvency after all conjures images of banks and other creditors who are simply attempting to recover their investment. A thorough examination of the dynamics of insolvency however reveals that insolvency is not just about debt collection. It is a complex process that also implicates interests and stakes beyond the interest of banks and other creditors. Globalization further exacerbates this complexity, more so under circumstances of economic decline in the world economy. Using literature review and interdisciplinary or critical legal analysis as methods, the thesis analyzes the axiology of corporate insolvency. While “law and economics” has been identified as an influential value in policy formulation, normative values like human rights were identified to be equally relevant. The thesis draws upon stakeholder theory and corporate responsibility vis-à-vis human rights law to lay the foundation for stakeholder conflict analysis in the context of corporate insolvencies. Concluding that the likely conflict situations in corporate insolvency involve human rights, the thesis suggests the use of the proportionality principle as a balancing tool. In the functional part of the thesis, the author analyzes the relevant provisions of the Philippine insolvency law and singles out the conceptual disconnect of the law with mainstream stakeholder theory in the way it defines the term “stakeholder.”

Diploma thesis dwells on company's bankruptcy according to bankruptcy law and interconnects the institute of bankruptcy with areas of financial analysis, accounting, valuation and, further on, with business and criminally law.

Final thesis is monitoring new legislation concerning reorganization. This process is quite new in Czech Republic. First chapter is theoretical introduction to insolvency in general. Second chapter deals with statistics in this area. Final chapter is dedicated to two case studies of real companies.

The diploma thesis deals with insolvency proceedings where the debtor's bankruptcy is solved by discharge of debts by fulfilment of the instalment schedule. The aim of the thesis is to verify three hypotheses expressed in the introduction. The author evaluates bill amending Act no. 182/2006 Coll., On Bankruptcy and Its Resolution (Insolvency Act), as amended, and certain other acts, which should become effective on 1 September 2016, particularly in the context the provision of services in the elaboration of an insolvency petition relating to the proposal to permit debt relief. More attention is paid to the performance of debt relief instalment schedule, especially Deductions from income of the borrower when one income, foreign income and income arising from the donation agreement or contract for retirement. The paper also compared the liquidation of seized property of the debtor in insolvency proceedings and enforcement proceedings. Finally, the work contains several proposals de lege ferenda, opinions of the author and their own approaches to solving problems associated with Discharge of debts by fulfilment of the instalment schedule.

Univ., Diss.--London, 2001.
Formerly CIP. Includes bibliographical references (S. [341] - 351) and index. Introduction : consistency of principle in corporate insolvency -- The creditors' bargain and the collectivity of the liquidation regime -- The authentic consent model : justifying the collective liquidation regime -- The pari passu principle and its relationship with other methods of insolvency distribution -- The priority of secured credit -- Administrative receivership and the floating charge -- Administration -- The wrongful trading provisions -- Adjusting transactions involving distressed companies.

The diploma thesis deals with several areas of issues related to valuing companies in bankruptcy proceedings. These spheres are interconnected. First and foremost it deals with the reasons for company valuation and perspectives of different subjects on this valuation. The second sphere of the thesis is the analysis of valuation approaches that are based on legal regulations of the Czech Republic. The last part of the paper is application of the valuation on a specific business company with subsequent confrontation with the actual realization of the company. Valuation is of crucial importance to creditors because it is determining in relation to their subsequent meeting the submitted claims.

Texte remanié de: Proefschrift--Radboud Universiteit Nijmegen, 2004.
EC = European communauty, UNCITRAL = United Nations. Commission on international trade law. Résumé en néerlandais. Bibliogr. p. 449-468.

Restructuring as one of the ways of solving insolvency is a method, that is supposed to allow preservation of the operation of the debtor`s company. Part of the restructurings however later converts into bankruptcy orders. The objective of this thesis is an identification of the key factors that lead to a successful fulfilment of the restructuring plan and also factors that might lead to their conversion into bankruptcy orders. The first part of this thesis is dedicated to insolvency and methods of its resolution among others according to the act no. 182/2006 Coll. on Insolvency and Methods of its resolution (Insolvency Act). The second part is dedicated to the selected factors and their possible influence on successful or unsuccessful completion of the restructuring. The conclusion includes a summary of important findings concerning whether and if so, what kind of connection is there between the selected factors and their influence on the successful completion of restructurings.

Bill C-55 proposes amendments to the Canadian Bankruptcy and Insolvency Act and the Companies' Creditors Arrangement Act tailored on the procedural framework contemplated by the UNCITRAL Model Law on Cross-Border Insolvency. This thesis demonstrates that implementation of these amendments will bring Canadian insolvency law into closer---but by no means complete---alignment with the doctrine of modified universalism reflected in the Model Law. To this end, the thesis undertakes an analysis of the different theoretical approaches to cross-border insolvency, shows the importance of instrument choice in determining the level of global harmonization attained, and reviews recent projects of harmonization. This is followed by a close comparative analysis of the extent of compliance of the provisions of Bill C-55 with the Model Law, an analysis that demonstrates the shortcomings of model laws and, somewhat paradoxically, their important role and function in eventually bringing about global legal harmonization.

Parties who contract at arm’s length are bound by the terms of their contracts, provided the contracts do not contravene a rule of law or public policy. The commencement of formal insolvency proceedings may however limit the ability of a debtor to perform its pre-petition contractual obligations, resulting to liabilities to creditors. Accordingly, a formal insolvency procedure ensures an orderly and efficient resolution of the debtor’s affairs -- maximising realisations to creditors or rescuing the corporate debtor as a going concern. To achieve this purpose, unilateral contract enforcement efforts and rights are replaced by a mandatory regime characterised by collectivity and equality in treatment of similarly situated creditors. This thesis comparatively evaluates the impact of the commencement of formal insolvency proceedings on corporate contracts in the UK and US. It examines the extent to which pre-petition contractual bargains are suspended, adjusted or avoided by the supervening insolvency law regime in the jurisdictions. The thesis adopts a thematic approach to examine how the legal frameworks in the jurisdictions manage the inevitable conflict between the policy considerations of contract law and those of insolvency law. The extent to which insolvency law should interfere with pre-insolvency contractual arrangements and entitlements has always been a contentious and keenly debated issue. No doubt, insolvency law has a greater number of interests to protect outside the interests of pre-petition contracting parties. These include the general body of creditors, employees, post-petition creditors etc. Nevertheless, in the absence of compelling and well-articulated policy justification, formal insolvency ought not to be a forum for the stripping of property rights or the pursuit of redistributional goals.

Foremost insolvency practitioners are agitating for the reform of the Nigerian corporate insolvency law, and in particular, its rescue system. They seek to transplant the corporate rescue model of either the United States or of England and Wales into the Nigerian insolvency system. On the premise that the present system, as well as the proposed models should be clearly understood before reforms are executed, this thesis examines the three rescue models in focus. Very little is written on the existing Nigerian rescue system. Utilising an analytical and empirical method, the thesis educes a robust and, it argues, representative picture of the Nigerian corporate rescue law and practice. It finds that the Nigerian rescue system comprises an informal and a formal phase. A company is more likely to be rescued at the informal phase, which is being developed by stakeholders to mitigate the substantive and institutional challenges that beset the formal phase. The formal rescue law is inadequate because its regimes are not fit for purpose. The greatest challenge it faces, it is argued, is administrative. Institutional failings have injected the tardiness and uncertainty that now characterise the Nigerian rescue system. The thesis proposes an analytical framework by which the rescue systems of Nigeria, the US and England and Wales, as well as other corporate rescue models, can be examined. From the analysis it presents, prospective reformers can identify the core elements of corporate rescue and how these are administered by their preferred models. They can also observe how these elements are administered by the Nigerian rescue model. It is expected that the robust findings presented in the thesis will contribute considerable value to the on-going insolvency reform debate in Nigeria.

The practice of German companies to indulge in forum shopping in England to achieve beneficial treatment under English insolvency proceedings has encouraged the German Government to make significant changes to German insolvency laws by introducing new legislation in the form of the Law for the Further Facilitation of the Rehabilitation of Companies (“Gesetz zur weiteren Erleichterung der Sanierung von Unternehmen” “ESUG“ ). The Act states that the impetus for the reform was the move of German companies to England which started a general discussion of “Germany, as a restructuring jurisdiction” (“Sanierungsstandort Deutschland”). Such forum shopping activities increased the awareness of the perceived weaknesses of the German system. This research looks at forum shopping from a Darwinian perspective. Germany and England as Member States of the European Union compete with each other as movement of capital to another Member State has a negative effect on the country’s economy. A reputation as a “bad restructuring jurisdiction” has an impact on the choice of business location and could act as a disincentive to company incorporations in Germany. Freedom of establishment allows companies to choose a regime which fulfils their needs, the Member States have to be motivated to attract companies and be willing to adapt to changes to keep up with business demands. In particular it should be borne in mind that forum shopping is not a one-dimensional activity and in itself constitutes an element of investment. The quality of a country’s legal restructuring framework has an impact on a company’s choice of business location in the first place and its willingness to invest and hence to attract debt financing. Taking the example of Germany and England, it is argued that forum shopping activities foster the development, improvement, reform and revision of existing laws. This thesis argues that Insolvency Darwinism results in a global alignment and convergence of insolvency systems so that the jurisdictions within the EU imitate each other with their rescue-friendliness. This competition for the “best insolvency regime” results in a more perfect insolvency landscape. The alignment with more rescue-friendly insolvency regimes is preferred to avoid unwanted forum shopping activities, whereas a “fettered Darwinian approach” of partially imitating another system will fail to deliver the desired result. This thesis critically examines whether Germany has achieved its aim of establishing a “culture of second chance” in changing the Insolvency Code (“Insolvenzordnung”) introduced by the ESUG. Chapter one serves to explain why forum shopping functions as a driver of insolvency law perfection, using a “Darwinian approach” and Darwin’s core thesis of “natural selection” to explain the competition of jurisdictions in insolvency law. Chapters two and three give an overview of the developments of the rescue culture in Germany and England. Chapters four to eight compare and contrast the different key areas in Germany and England, examining the situation in Germany before and after the introduction of the ESUG. Specific focus is put on the question of whether the changes introduced by the ESUG were driven by forum shopping activities and whether these changes led in fact to a more “perfect“ insolvency regime, in the sense as examined in chapter one. Chapter nine is dedicated to the conclusion.

La thèse intitulée « Les actions qui découlent directement de la procédure d'insolvabilité et qui y sont étroitement liées dans le cadre du règlement UE 2015/848 sur les procédures d'insolvabilité » se concentre sur les critères de détermination des juridictions compétentes en matière de litiges découlant de la procédure d'insolvabilité dans le contexte de procédures transfrontalières. Selon son Article 1(1)(b), les procédures d'insolvabilité sont exclues du champ d'application du règlement (UE) n° 1215/2012 (« Règlement Bruxelles ») et devraient être couvertes par le règlement (UE) n° 848/2015 ('Règlement Insolvabilité'). Pour cette raison, en principe, l'interprétation de deux règlements devrait, autant que possible, combler les lacunes réglementaires entre les deux instruments. Le texte du nouvel article 6 Règlement Insolvabilité prévoit désormais que les juridictions compétentes en vertu de l'article 3 du Règlement Insolvabilité soient compétentes dans le cadre de toutes les actions qui découlent directement de la procédure d'insolvabilité et y sont étroitement liées. Toutefois, ce principe (appelé la vis attractiva concursus « réduite » ), malgré quelques clarifications ont été fournies par la Cour de Justice, ne résoudra pas la question et l'interprétation du champ d'application du Règlement Insolvabilité par rapport au Règlement Bruxelles est encore douteuse, car il y a encore beaucoup de zones grises dans l'interprétation de cette règle. Le but de la thèse est d'analyser ce qui est attendu en matière de litiges découlant de la procédure d'insolvabilité et d'analyser les cas où il est controversé qu'elles entrent dans le champ d'application du règlement (UE) n° 848/2015 plutôt que dans celui du règlement n° 1215/2012
The thesis, entitled "Actions deriving directly from insolvency proceedings and closely linked with them under regulation EU 2015/848 on insolvency proceedings", focuses on the criteria for determining the courts having jurisdiction for disputes arising in the context of cross-border Insolvency proceedings. According to its Article l(l)(b), insolvency proceedings are excluded from the scope of Regulation (EU) 1215/2012 ('Brussels Regulation') and should be covered by Regulation (EU) No 848/2015 ('EIR). For this reason, in principle, the interpretation of the two regulations should, as far as possible, fill in the regulatory gaps between the two instruments. The text of the new Article 6 EIR now provides that any action with cross-border elements that prove to be 'directly deriving from Insolvency proceedings and closely linked with them' must be attracted to the jurisdiction of the Member State opening the insolvency procedure under Article 3 EIR. Nevertheless, this principle (referred to as the 'reduced' vis attractiva concursus), despite some clarifications provided by the European Court of Justice, does not resolve the issue, and the interpretation of the scope of application of the Insolvency Regulation and the Brussels Regulation's remains questionable, as there are still many grey zones in the interpretation of this rule. The aim of the thesis is to analyse what kind of actions should be regarded as 'directly deriving from' and 'closely linked with' insolvency proceedings, and to analyse those cases where it is controversial whether the action should fall within the scope of the EIR rather than the Brussels Regulation

La questione delle azioni individuali che derivano direttamente dal fallimento e ad esso ineriscono (nel seguito, c.d. “azioni ancillari”) nel contesto europeo è stata storicamente affrontata con riferimento all’ambito di applicazione della Convenzione di Bruxelles del 1968 sulla competenza giurisdizionale, il riconoscimento e l’esecuzione delle decisioni in materia civile e commerciale (la “Convenzione di Bruxelles”). In mancanza (all’epoca) di una disciplina comunitaria sull’insolvenza transfrontaliera, con la nota sentenza Gourdain, la CGE ha interpretato la nozione di azione ancillare sotto il prisma dell’esclusione relativa a “i fallimenti, i concordati e le procedure affini”, prevista dall’articolo 1(2)(2) della Convenzione di Bruxelles. È stato in quell’occasione che la Corte ha ritenuto che le azioni in qualche modo riferibili al fallimento sono escluse dal campo di applicazione della Convenzione di Bruxelles (oggi Regolamento Bruxelles Ibis) a condizione che esse derivino direttamente dal fallimento e si inseriscano stretta¬mente nell'ambito del procedimento concorsuale (così coniando quella che, negli anni, è stata definita la “Formula Gourdain”). Le incertezze interpretative derivanti da una formulazione così ambigua, allora riferita al solo ambito di applicazione della Convenzione di Bruxelles, non venivano rimosse (e, anzi, forse erano acuite) dall’introduzione di una specifica disciplina relativa alle procedure di insolvenza. Ed infatti, il successivo Regolamento (CE) 1346/2000 (il “Regolamento Insolvenza”), da un lato conteneva una grave lacuna normativa, poiché nulla diceva in tema di giurisdizione sulle azioni ancillari e, dall’altro lato, anche laddove le menzionava (per fini diversi dalla giurisdizione), si limitava a riprodurre la Formula Gourdain. Il nebuloso quadro normativo appena descritto è stato in parte chiarito dal Regolamento (UE) 2015/848 (il “Regolamento Recast”), che ha provveduto a rimediare alla predetta omissione, prevedendo espressamente la vis attractiva (dimezzata) europea, ai sensi della quale la competenza giurisdizionale sulle azioni ancillari spetta ai giudici dello Stato membro in cui è aperta la procedura. Se è stato così chiarito l’aspetto “dinamico”, relativo alla giurisdizione, resta, invece, parzialmente immutato il problema di una definizione autonoma di azione ancillare, i cui confini, anche nel Regolamento Recast, continuano ad essere delineati dalla Formula Gourdain. Indicazioni solo parziali possono trarsi dal Considerando 35 Regolamento Recast e, soprattutto, dalle pronunce della CGE, che pur consentendo, in parte, di avanzare una più definita sistematizzazione della nozione di azioni ancillari, rivelano sostanzialmente un orientamento ondivago, che non consente di rintracciare (ancora) un criterio generale, certo e condiviso sul punto. Si può allora ipotizzare che, ai fini della normativa europea, ancillari siano quelle azioni che sottendono una pretesa che sorge ex novo dal fallimento, il cui DNA, potremmo dire, è ontologicamente legato all’insolvenza. Si tratta di un numero assai ridotto di azioni quali (prevedibilmente) la revocatoria; le azioni di responsabilità nei confronti di organi della procedura, e le azioni che derivano dallo scioglimento dei contratti esercitato dal curatore per un’espressa previsione della legge concorsuale. Per contro, non sarebbero ancillari tutte le altre azioni rispetto a cui il fallimento si pone quale evento neutro (es. quelle che presentano con il fallimento un legame solo occasionale e quelle che preesistevano nel patrimonio del fallito). Permangono, tuttavia, notevoli dubbi rispetto a quelle azioni, collocabili in un’incerta twilght-zone, al confine tra il diritto civile, commerciale e il diritto fallimentare che, preesistenti al fallimento, sono in qualche misura influenzate dall’apertura di una procedura concorsuale. Nel solco di queste preliminari osservazioni, la tesi si ripropone di analizzare specificatamente il tema delle azioni ancillari nella disciplina europea, non solo indagandone gli aspetti processuali (in particolare, della giurisdizione), ma valutando anche una possibile individuazione di una nozione autonoma di azione ancillare e l’elaborazione di un catalogo di azioni che, pur nelle differenze proprie di ogni ordinamento nazionale, rivelino uno jus commune europaeum che consenta di inquadrarle nell’ambito di applicazione del Regolamento Recast.
Historically, the topic of individual actions directly deriving from and closely linked with insolvency proceedings (hereinafter referred to as “Annex Actions”) has been addressed in the European scenario with reference to the scope ratione materiae of the Brussels Convention dated 1968 on the jurisdiction, recognition and enforcement of judgments in civil and commercial matters (the “Brussels Convention”). In the absence (at that time) of Community rules on cross-border insolvencies, in the Gourdain judgment the ECJ interpreted the notion of Annex Actions under the prism of the exception relating to “bankruptcy, proceedings relating to the winding-up of insolvent companies or other legal persons, judicial arrangements, compositions and analogous proceedings”, set forth by Article 1(2)(2) Brussels Convention. It was on that occasion that the Court held that actions which are related to insolvency proceedings are excluded from the scope of the Brussels Convention (now the Brussels 1a Regulation), with the proviso that they derive directly from insolvency proceedings and are closely linked with them (thus coining what has been called, over the years, the “Gourdain Formula”). The interpretative uncertainties arising from such an ambiguous wording - at the time referring only to the scope of application of the Brussels Convention - were not removed (and possibly were even exacerbated) by the introduction of the European regime on insolvency proceedings. Indeed, the Regulation (EC) 1346/2000 (the “Insolvency Regulation”), on the one hand, revealed a serious regulatory gap, since it did not provide for a rule on the jurisdiction of Annex Actions and, on the other hand, even where it mentioned them (for purposes other than jurisdiction), it laconically restated the Gourdain Formula, with no further clarifications. The nebulous legislative framework described above has been partly clarified by Regulation (EU) 2015/848 (the “Recast Regulation”), which has remedied the aforementioned omission, expressly providing for the (halved) European vis attractiva concursus. According to that principle, the courts of the Member State in the territory of which insolvency proceedings are opened, are vested with the jurisdiction to hear and determine Annex Actions. The impact of the reform over the “dynamic” profile of the vis attractiva concursus must be positively assessed since it has dispelled many of the doubts concerning the allocation of jurisdiction on Annex Actions. Yet, the problem of the autonomous definition of Annex Actions remains partially unsolved, because also under the Recast Regulation, the contours of that concept continue to be defined by the vague Gourdain Formula. Only partial indications can be drawn from Recital 35 Recast Regulation and, above all, from the extensive case-law of the ECJ. The latter, however, allows only to some extent to draw a systematic notion of Annex Actions, as it substantially reveals a wavering orientation, which does not permit to trace (yet) a general criterion, certain and shared on this point. It is suggested that, for the purposes of the European legislation, Annex Actions are those actions underpinning a right or obligation which stems from the opening of insolvency proceedings, whose DNA, we might say, is ontologically linked to insolvency proceedings. They would count a very small number of actions such as (predictably) avoidance actions, liability actions against the trustee and other bodies of the procedure, and actions arising from the termination of contracts exercised by the trustee by virtue of the express powers conferred upon him by insolvency law. On the contrary, all other actions in respect of which the procedure is a neutral (legal) event should not be characterised as Annex Actions (e.g. actions that have only an occasional link with insolvency proceedings and those that existed in the legal sphere of the insolvent debtor prior to the opening of the procedure). However, considerable doubts remain with respect to the characterisation of some actions, which can be placed in an uncertain twilight-zone at the crossline between civil, commercial law and bankruptcy law. Although the legal foundation of those action exists even before insolvency proceedings, they prove to be affected by the opening of the procedure to such an extent that they may be considered as different actions. In the wake of these preliminary observations, the thesis aims to specifically analyse the topic of Annex Actions under the European regime of cross-border insolvencies. Not only it investigates the procedural aspects of the issue (in particular, the jurisdiction), but it also assesses whether it is possible to draw an autonomous notion of Annex Action and elaborate a catalogue of actions, which, despite the differences inherent in each national system, reveal a jus commune europaeum that allows to trace them back under the umbrella of the Recast Regulation.
La thèse intitulé « les actions qui découlent directement de la procédure d’insolvabilité et qui y sont étroitement liées dans le cadre du Règlement UE 2015/848 sur les procédures d'insolvabilité » se concentre sur les critères de détermination des juridictions compétentes en matière de litiges découlant de la procédure d’insolvabilité dans le contexte de procédures transfrontalières. Selon son Article 1(1)(b), les procédures d’insolvabilité sont exclues du Règlement (UE) n° 1215/2012 concernant la compétence judiciaire, la reconnaissance et l’exécution des décisions en matière civile et commerciale (« Règlement Bruxelles ») et devraient relever du champ d’application du Règlement (UE) n° 848/2015 relatif aux procédures d’insolvabilité (« Règlement Refondu »). Pour cette raison, en principe, l’interprétation de deux susmentionnés Règlements devrait, autant que possible, combler les lacunes entre les deux instruments. Le texte du nouvel article 6 du Règlement Refondu prévoit désormais que les juridictions compétentes en vertu de son article 3 soient compétentes également pour toutes les actions qui découlent directement de la procédure d’insolvabilité et y sont étroitement liées. Toutefois, ce principe (appelé la vis attractiva concursus européenne), malgré quelques clarifications ont été fournies par la Cour de Justice, ne résoudre pas la question et l’interprétation du champ d’application du Règlement Refondu par rapport au Règlement Bruxelles est encore douteuse, car il y a encore beaucoup de zones grises dans l’interprétation de cette règle. L'objectif de la thèse est d'analyser quel type d'actions doit être considéré comme « découlant directement » et « étroitement lié » aux procédures d'insolvabilité, et d'analyser les cas où il est controversé de savoir si l'action doit entrer dans le champ d'application du Règlement Refondu plutôt que dans celui du Règlement Bruxelles.

The subject of this thesis is the operation of corporate insolvency law in post-colonial India. Indian corporate insolvency law has been widely condemned as dysfunctional, critics complaining of extreme delays and a series of associated harms to creditors in the disposal of formal proceedings. Surprisingly little is known, however, about why the law has ‘failed’ creditors in this way - why the law operates as it does. That is the question that motivates this thesis. The thesis reports the results of an in-depth study of the introduction and development of India’s two principal insolvency procedures for corporate debtors: liquidation (under the Companies Act 1956) and rescue (under the Sick Industrial Companies (Special Provisions) Act 1985, for industrial companies). The most significant contribution made by the thesis is the reporting of new evidence of the influence of judges on the development of these two insolvency procedures over time, drawn from an original analysis of a large body of Indian case law. This evidence suggests that the role of the courts (or more specifically, the role of judges) has been significantly underestimated in previous attempts to explain the demise of corporate insolvency law in post-colonial India.

Magister Legum - LLM
This paper argues that there is a need for an improved cross-border insolvency regime as the common law principles applied in Namibia are outdated and thus ill-equipped to deal with present-day complex issues of cross-border insolvency. The lack of literature on issues of crossborder insolvency belies the importance of cross-border insolvency in African developing countries like Namibia who seek to encourage trade and investment in the hope of achieving economic development. In the final section of chapter one, the paper will consider the Model Law as the basis needed to develop clear, fair and predictable rules to effectively deal with the various aspects of cross-border insolvencies in Namibia.

This thesis views cross-border insolvency through the lens of Transaction Cost Economics. It poses the question whether it is possible to achieve transaction cost efficiencies in cross-border insolvency by aligning cross-border insolvency transaction types with appropriate available governance modes using Williamson’s transaction cost economics (TCE). This is a unique approach to the subject. It is important because there is a strong normative argument for efficiency as a goal of cross-border insolvency law. There is little research on the transaction cost efficiency of insolvency, but more particularly, cross-border insolvency. There is a growing need, given the increasing globalisation of trade for a greater understanding of transaction cost efficiencies in cross-border insolvency.

This dissertation deals with the matter of legal and accouting aspects of insolvency proceedings in the Czech Republic. The first chapter describes the historic development of bankruptcy legislation. The second chapter deals withs matter of bankruptcy as one of the forms of crises solution. It defines the basic conditions for a bankruptcy, analyses individual procedural stages of bankruptcy proceedings because of prevailing solution of bankruptcies in this way. The third chapter analyses the present legislation in compliance with teh bankruptcy law and methods for its solution, Act No 182/2006 Coll The core of this chapter includes the basic pricniples and fundamentals of the new bankruptcy legislation in this country. Special attention is paid to the sanitation method for a crisis solutin in the form of reorganizing within a reorganizing plan approved by insolvency creditors. The fourth chapter is focused on the role of accounting ind the conditions of insolvency proceedings, this depending on the method for solution of the bankruptcy. The fifth chapter includes continuation of the analysis of information problem which will have to be trated within the insolvency proceedings under way. The sixth chapter offers the tools and mechnisms which can be used within the available information accouting basis for ordinary management economic and control activities in overcoming a crisis situation. The last chapter presents statistical data for randomly celected companies in bankruptcy at the time of this dissertation completion.

This dissertation is the analysis of sections 64, 65, 66 and 152 of the Insolvency Act 24 of 1936. Sections 414 to 418 of the Companies Act 61 of 1973 are also touched upon in so far as they relate to these sections of the Insolvency Act. These sections entail the compulsory attendance of the creditors 'meetings by the insolvent. At these meetings the interrogation of the insolvent regarding his insolvent estate is conducted. Its purpose is to ensure that the insolvent accounts for the assets of his estate and supply reasons for his bankruptcy. The information gathered thereat will assist in the due and fair distribution of his assets amongst his creditors. The purpose of this research is to examine whether the application of these sections to the insolvent person (juristic or natural) is in compliance with the Constitution of the Republic of South Africa, 1996. The provisions provided for by this sections appears to be good, however there is another viewpoint. The fact that the insolvent and any other person interrogated may be compelled to divulge certain privilege information, even to the extent of incriminating himself (themselves)in the process seems to be violating certain rights of the person interrogated, for example, one's right not to incriminate himself This right especially comes to mind when one considers the fact that information divulged at the interrogations may be used against the person giving it in subsequent proceedings relating to perjury, administration of the insolvent estate, taking of oath and so forth. These sections also provides for the detention of the person who fails to comply with the provisions of this Act. The detention is said to be a mechanism that the legislature needs to ensure compliance and is not regarded as detention without trial. However, the detention has to be ordered by a judicial officer presiding over the meeting of creditors and not a person from the executive organ of the state. Case law has however indicated that there is nothing unconstitutional about these sections as long as they are applied with precautionary measures, taking into consideration the rights of the interrogatee or person examined as entrenched in the Bill of Rights. The principles of justice also require that every one shall be entitled to fair proceedings.
Thesis (LL.M.)--North-West University, Potchefstroom Campus, 2006.

This thesis discusses what features and advantages of the Model Law regime that Chinese law could learn to improve the Chinese cross-border insolvency system at both international and regional levels. Cross-border insolvency is one inevitable consequence of the globalisation of business activity. For solving transnational insolvencies, there is a clash of competing national laws on issues, including the recognition of foreign claims, the process related to the distribution of assets, and different policy preferences for protecting different groups of creditors. The ongoing trend of harmonising cross-border insolvency laws has been actively promoted by the UNCITRAL Model Law on Cross-Border Insolvency. The Model Law was developed based on the principle of modified universalism, and its soft law nature aims to assist national insolvency laws and facilitate recognition of foreign proceedings. Although the interpretation of the law in enacting countries can be different, the thesis concludes that the Model Law can interconnect individual insolvency proceedings in an orderly and effective manner through its main features such as the centre of main interests (COMI) and cooperation and communication. Cross-border insolvency rules in China are conservative, and the only relevant article (article 5 EBL 2006) sets the basic recognition rules, which have a restrictive application, based on the principle of reciprocity and bilateral agreements. However, after reviewing relevant Chinese laws for dealing with international matters, the thesis finds that there are legal concepts under the Chinese commercial law system sharing similarities with the Model Law system, which provide legal potential for China to adopt a modified universalism approach, and this study also argues that adopting COMI could be a good start to improving Chinese international insolvency law. As China includes various jurisdictions, this research also focuses on Hong Kong because of its legal and financial significance. Although Hong Kong has not developed statutory international insolvency law, there is a flexible common law approach, which can achieve similar results as the Model Law system. The interregional insolvency within China is a dilemma between treating cases from other regions (such as Hong Kong) as foreign matters and politically highlighting such matters as national matters. This thesis argues that the close political and economic connections between the mainland and Hong Kong require an effective interregional insolvency recognition regime and transplanting the Model Law regime into a regional context, applying a COMI-based recognition approach, could be a workable system.

What is effective insolvency law? Effective insolvency laws play an important role in the health of an economy, and particularly upon the framework of investment decisions. Understanding how this works is particularly relevant during a period of financial crisis. International Monetary Fund and World Bank guidelines for “Orderly and Effective” insolvency laws were intended to encourage law reforms that would stimulate investment by improving returns to investors in the event of insolvency. The guidelines were strongly influenced by an efficiency approach to insolvency. This approach posits that absolute priority for secured creditors is allocatively efficient and therefore the best means to achieve maximum social welfare. The guidelines also drew heavily on the principles and practices of ‘creditor friendly’ English law, seen by some as a paragon of efficient insolvency. But how accurate is this appraisal of English law or the impact of efficient insolvency? The Enterprise Act 2002 sought to develop a rescue culture by improving inclusivity and increasing distribution of both control and returns amongst stakeholders. Instead of reducing overall returns, as an efficiency model would suggest, research into insolvency outcomes suggests that the revised administration procedure may provide better returns to all groups of creditors, including secured creditors. This thesis uses empirical data to explore the limitations of an efficiency approach to insolvency, and explain why in a developed legal regime inclusivity improves returns by increasing the likelihood of effective rescue. The changes in English law are reflective of an increased private sector investment in informal workouts and a growing emphasis on reputational and relationship concerns. An element of redistribution and inclusivity will provide better global returns to investors than a slavish approach to secured creditor priority.

This thesis is a history of the reform of English bankruptcy law 1831-1914 and a statistical analysis of the insolvency the reforms sought to limit. The first two chapters describe the historiography of government growth in nineteenth-century Britain and outline the history of English bankruptcy legislation until 1831. Using statistics from bankruptcy reports published by the Board of Trade after 1883 and returns issued by other government entities prior to that date, chapters three and four define the extent and the characteristics of insolvency. These chapters analyze the aggregate level of bankruptcy in particular occupations and geographic areas; they also examine the effect of trade cycles on bankruptcy levels, both in terms of numbers of bankruptcies and losses occasioned. The remaining chapters trace the history of bankruptcy legislation and examine why Parliament embraced the concept of government supervision of bankrupt estates in 1831, then dismantled the system in the 1860s, only to reimpose it once again a short time later. The roles of three groups in this story -- the business community, the legal profession, and the government -- are examined in detail using the records of the local chambers of commerce, law societies, and other organizations. The thesis concludes that, while the aggregate level of losses declined after the Bankruptcy Act of 1883, the loss rates for some occupations did not reflect this decline. Also, trade cycles did not uniformly affect the rate of bankruptcy for all occupations and geographic areas. Random factors rather than trade cycles had the greatest effect on annual bankruptcy rates. The thesis also argues that the extension of government brought about by bankruptcy reforms was largely a pragmatic attempt to manage bankrupt estates efficiently and had little philosophical basis. Further, the close resemblances between bankruptcy reforms and other Victorian extensions of government add to the evidence that, while there may not be a strict pattern to government growth, such growth may be considered as a distinct and identifiable process.

This study aims broadly to explore the legal and practical problems of winding up and insolvency for charities that are, or ought to be, registered with the Charity Commissioners for England and Wales and to explore possible 'rescue mechanisms.' It seeks to identify common underlying factors or trends associated with charities becoming insolvent or being wound up. The methodology consisted of book work and practical research in which a detailed study was made of 130 charitable companies and the experiences of legal and accountancy practitioners were sought. Twenty case studies were put together from information provided by the practitioners and from the author's own experience. The areas of legal complexity explored include problems associated with land and endowments, and the augmentation principle in respect of bequests to a corporate charity that has been dissolved. Some issues such as property holding and personal liability are more complex in an unincorporated association. Practical difficulties such as disputes between trustees, between staff and trustees, or between members are significant as are the legal and practical complexities associated with the contract culture. Charities represent an important sector of the economy, collectively being worth £19.7bn in 1998, and their success or failure is of public concern. The research indicates that charities are affected by societal changes, legislative change and changes in the attitudes of beneficiaries. Their dissolution or winding up is often a result of a combination of factors, both internal and external and service providing charities appear to be particularly vulnerable. The quality, cost, and availability of professional advice is considered. It is suggested that the role of local intermediary bodies could be enhanced and that a means be found for accrediting the competence of charity advisors, whether professional or lay.

nÃo hÃ
Na dÃcada de 1990 ocorreram diversas transformaÃÃes no setor de saÃde no Brasil, sendo uma das mais importantes, a alteraÃÃo da Lei que regula as operadoras de planos e seguros para os riscos à saÃde dos indivÃduos. Este setor vem se tornando cada vez mais concentrado com uma saÃda maior que a entrada de novas empresas. à importante investigar, neste caso, que fatores contribuem para que uma operadora de plano nÃo se sustente no mercado. Quais sÃo os sinais (variÃveis) visÃveis na contabilidade destas que antecipam a insolvÃncia? Para responder esta questÃo, esta dissertaÃÃo utiliza-se de um modelo Logit multivariado para a probabilidade de insolvÃncia, onde os principais cofatores sÃo indicadores financeiros das empresas retiradas da base de dados mais atualizada da AgÃncia Nacional de SaÃde Suplementar. AlÃm destes indicadores, tambÃm foi investigado se o tipo de operadora de plano de saÃde ou o local de atuaÃÃo da mesma tambÃm podem contribuir para o risco de insolvÃncia. Como resultado verificou-se que o tipo de operadora e a regiÃo de atuaÃÃo de cada uma nÃo tÃm correlaÃÃo quanto ao nÃvel de insolvÃncias das OPS. De maneira esperada os indicadores econÃmicos financeiros de endividamento (CT/CP e ENDIV) e de recebimento (PMCR) foram os mais importantes na previsÃo de insolvÃncia das empresas em um perÃodo subsequente.
Na dÃcada de 1990 ocorreram diversas transformaÃÃes no setor de saÃde no Brasil, sendo uma das mais importantes, a alteraÃÃo da Lei que regula as operadoras de planos e seguros para os riscos à saÃde dos indivÃduos. Este setor vem se tornando cada vez mais concentrado com uma saÃda maior que a entrada de novas empresas. à importante investigar, neste caso, que fatores contribuem para que uma operadora de plano nÃo se sustente no mercado. Quais sÃo os sinais (variÃveis) visÃveis na contabilidade destas que antecipam a insolvÃncia? Para responder esta questÃo, esta dissertaÃÃo utiliza-se de um modelo Logit multivariado para a probabilidade de insolvÃncia, onde os principais cofatores sÃo indicadores financeiros das empresas retiradas da base de dados mais atualizada da AgÃncia Nacional de SaÃde Suplementar. AlÃm destes indicadores, tambÃm foi investigado se o tipo de operadora de plano de saÃde ou o local de atuaÃÃo da mesma tambÃm podem contribuir para o risco de insolvÃncia. Como resultado verificou-se que o tipo de operadora e a regiÃo de atuaÃÃo de cada uma nÃo tÃm correlaÃÃo quanto ao nÃvel de insolvÃncias das OPS. De maneira esperada os indicadores econÃmicos financeiros de endividamento (CT/CP e ENDIV) e de recebimento (PMCR) foram os mais importantes na previsÃo de insolvÃncia das empresas em um perÃodo subsequente.

In Peru, small companies have many difficulties to access financial services; therefore, a possible solution is to have a special regime for these companies, which grants a higher expectative of payment to creditors compared with the traditional bankruptcy system, because this access to services provided by financial intermediaries becomes essential for the stability and progress of the sector.
Las micro y pequeñas empresas en el Perú tienen dificultades para acceder a los servicios financieros, en ese sentido, una solución a este problema es que exista un régimen concursal propio para estas empresas que otorgue una mayor expectativa de cobro a sus acreedores a diferencia del sistema concursal tradicional, toda vez que el acceso a los servicios que ofrecen los intermediarios financieros deviene en esencial para la estabilidad y progreso del sector.

In a pioneering effort, this study is the first to develop a construction firms insolvency prediction model (CF-IPM) with Big Data Analytics (BDA); combine qualitative and quantitative variables; advanced artificial intelligence tools such as Random Forest and Bart Machine; and data of all sizes of construction firms (CF), ensuring wide applicability The pragmatism paradigm was employed to allow the use of mixed methods. This was necessary to allow the views of the top management team (TMT) of failed and existing construction firms to be captured using a qualitative approach. TMT members of 13 existing and 14 failed CFs were interviewed. Interview result was used to create a questionnaire with over hundred qualitative variables. A total of 272 and 259 (531) usable questionnaires were returned for existing and failed CFs respectively. The data of the 531 questionnaires were oversample to get a total questionnaire sample of 1052 CFs. The original and matched sample financial data of the firms were downloaded. Using Cronbach’s alpha and factor analysis, qualitative variables were reduced to 13 (Q1 to Q13) while11 financial ratios (i.e. quantitative variables) (R1 and R11) reported by large and MSM CFs were identified for the sample CFs. The BDA system was set up with the Amazon Web Services Elastic Compute Cloud using five ‘Instances’ as Hadoop DataNodes and one as NameNode. The NameNode was configured as Spark Master. Eleven variable selection methods and three voting systems were used to select the final seven qualitative and seven quantitative variables, which were used to develop 13 BDA-CF-IPMs. The Decision Tree BDA-CF-IPM was the model of choice in this study because it had high accuracy, low Type I error and transparency. The most important variables (factors) affecting insolvency of construction firms according to the best model are returned on total assets; liquidity; solvency ratio; top management characteristics; strategic issues and external relations; finance and conflict related issues; industry contract/project knowledge.

The restructuring plan is an instrument which, based on standards of efficiency and competence, allows insolvent companies to continue running in the market. Therefore, in order to turn a company in crisis into a competitive unit of business, comprehensive mechanisms may be established based on standards aimed by the market and consumers.This article addresses four essential aspects in order to understand the restructuring plan as a real instrument of competence in the market of insolvent companies: (i) its opposable nature; (ii) the treatment given to guarantees provided by the debtor; (iii) the consequences of the non observance of the plan; and (iv) the scope of this bankruptcy instrument according to IndecopI (Instituto Nacional de Defensa de la Competencia y de la Protección de la Propiedad Intelectual).
El plan de reestructuración es un instrumento que permite a las empresas insolventes continuar en el mercado, bajo cánones de eficiencia y de competencia; con ese fin, se instauran mecanismos integrales para tornar a la empresa en crisis en una unidad de negocios competitiva, sobre la base de los estándares que el mercado y los consumidores esperan de ella. El presente artículo aborda cuatro aspectos esenciales para comprender al plan de reestructuración como un verdadero instrumento de competencia en el mercado de empresas insolvente: (i) su naturaleza oponible; (ii) el tratamiento que brinda a las garantías constituidas por el deudor; (iii) las consecuencias del incumplimiento del plan; y (iv) los alcances dados por el Instituto Nacional de Defensa de la Competencia y de la Protección de la Propiedad Intelectual(IndecopI) acerca de este instrumento concursal.

The Master's Thesis is focused on the problem of securing an operational cash flow for maintaining entrepreneurship activities of organizations that enter into insolvency proceedings because of their insolvency or excessive indebtedness. This issue is addressed by the insolvency law through a new institute of debtor-in-possession financing which is a part of the main purpose of this law to assist companies that have a certain economic potential to create value added in the future prospect. The issue is with obtaining such post-petition financing because there is not many banking or non-banking institutions that would provide this high-risk financing. From the above-mentioned reason, an idea has been developed with the cooperation of Česká Spořitelna a.s. to create a new credit product provided by the banking institution for the Czech financial market. The assessment of rationality, effectiveness, and recoverability, as well as the proposal of standards and requirements for completion of contracts and their structure about debtor-in-possession financing are compiled in the Master's Thesis.

Insolvency law is a progressive and dynamic legal discipline closely interrelated with economics and business. A quality legal framework of insolvency is indispensable for modern market economies: it helps to identify companies or individuals in financial distress and to restructure their debts, or liquidate their assets in an efficient and transparent way. The main purpose of the insolvency law is to provide creditors and debtors with a ground for negotiations and to help them reach qualified decisions based on the available information. In the Czech Republic, the insolvency law had long been criticized for its insufficient protection of creditors and for the loopholes that made extensive property frauds possible without having the wrongdoers punished. The current Czech Insolvency Act which took effect in 2008 was broadly inspired by the U.S. Bankruptcy Code Chapter 11 and eliminated most of the weaknesses of the earlier law. This thesis shows that valuable inspiration can be found not only in texts of statutes but also in the real life. On the example of reorganizations of Kordárna and GM described here, main principles of insolvency law are being discussed.

Правові відносини банківської неплатоспроможності - це відносини, які регулюються нормами права між Національним банком України, Фондом гарантування вкладів фізичних осіб та неплатоспроможним банком щодо виконання та припинення тимчасової адміністрації, тобто зняття неплатоспроможного банку з ринок, використовуючи законні засоби у порядку тимчасової адміністрації або його ліквідацію внаслідок визнання його неплатоспроможним.
Правовые отношения несостоятельности банков - это отношения, регулируемые нормами права между Национальным банком Украины, Фондом гарантирования вкладов физических лиц и несостоятельным банком в отношении осуществления и прекращения временной администрации, то есть изъятия несостоятельного банка из рынок, используя законные средства в рамках процедуры временного администрирования или его ликвидации в результате признания его несостоятельным.
Legal relationships of banks insolvency – are relationships governed by the norms of law between the National Bank of Ukraine, the Physical Subjects’ Deposit Guarantee Fund and insolvent bank concerning the implementation and termination of temporary administration, that is the withdrawal of an insolvent bank from the market using legal means within the procedure of temporary administration or its liquidation as a result of recognizing it insolvent.

The thesis is denoted to two principal issues of European insolvency law - COMI notion interpretation and forum shopping. On the background of historic development, it interprets the current wording of European Insolvency Regulation in the light of case law issued by the Court of Justice of the European Union. It also analyses benefits and drawbacks of proposed legislative changes to COMI motion in the connection with the contemplated amendment of the European Insolvency Regulation. It proposes that COMI of companies is determined using irrebuttable presumption of COMI in the place of their registered seat. Further, it distinguishes between positive and negative forum shopping. Also, it provides an overview of risks and advantages related to forum shopping. The thesis evaluates the efficiency of current and potential tools for forum shopping elimination. It also deals with the relation of forum shopping to EU principal freedoms.

Eligible insolvency petition is the only way how to initiate insolvency proceedings and therefore to achieve the highest and usually proportional satisfaction of creditors claims of the debtor. The quality of administered insolvency petitions according to actual statistics may not match the requirements set out by the Insolvency Act and the decision-making practice of the courts. Because of this fact, my goal was mainly to point out the repetitive mistakes, which are made by insolvency petitors in administation, to define the particulars of such petitions, and to provide the instruction how to give the eligible petition for consideration. My diploma thesis is divided into five chapters, where there is a gradual refinement of the requirements for insolvency petition. The first part includes basic definition of decline and impending bankruptcy when these institutions are a precondition for the commencement of insolvency proceedings and insolvency petitioner in its proposal must say that the debtor is insolvent, or that it may threaten him. The second chapter defines the decision of insolvency petition to be sure how the insolvency court may respond to such petitions, there is also a defined responsibility of insolvency petitioner for submission of undiscussed petition. The third chapter refers to...

Conditions for adjudication of bankruptcy The purpose of my thesis is to analyse conditions for adjudication of bankruptcy. My thesis is composed of nine chapters, each of them dealing with different aspects of the conditions for adjudication bankruptcy. Chapter One is an introduction and defines my motivation for writing about conditions for adjudication of bankruptcy. I have chosen this topic because I'm interested in the issue of insolvency law. In my opinion, this is really an up to date topic, as there are recently more and more people and companies which are in financial trouble. Chapter Two is subdivided into two subchapters. Subchapter One defines the term of bankruptcy and the development of its meaning over the years. Subchapter Two describes the systematic of the Insolvency Act (Act No. 182/2006 Coll. On Insolvency and its Settlement Methods) and explains the classification of bankruptcy within the Act. Chapter Three covers the historical development of the conditions, starting in 1781 with Josephine Bankruptcy Act. It provides a short illustration of the transformation in the conditions for adjudication of bankruptcy over the past years. Chapter Four characterises the conditions for adjudication of bankruptcy and enumerates them. This chapter generally divides the conditions to the substantive...

Reorganization in the new Czech insolvency law with respect to the US law Summary The purpose of my thesis is to analyse reorganization as an institute of the new Czech insolvency law and its relation to the US insolvency legal regulations. The thesis is composed of 11 main chapters, majority of them relating to the reorganization process and its particular subjects. Chapter One is introductory and defines the purpose of the thesis as well as its limits. The next two chapters give a brief introduction on the insolvency law history in both countries in order to highlight the underlying differencies of both economics. These chapters also addresse the current legal status of insolvency law with emphasis on the recent legislation changes and their relation to economical and social changes. Chapter Four lists the main subjects to the insolvency procedure with emphasis on reorganization and defines basic terminology to enable a better understanding of the reorganization. It is followed by a chapter Five describing the reorganization institute in detail incorporating an outline of relevant Czech case law. Each of the following four chapters represents an important milestone of the reorganization process and is further subdivided in particular stages in order to enable a better understanding of the process as well...

1 Filing claims in insolvency proceedings Abstract The topic of this master's thesis is the issue of filing claims in the Czech insolvency proceedings, especially the lodging of claims but also other ways of filing claims. Furthermore, the thesis deals with the legal regulation of lodging claims in European insolvency law. Finally, the subject of the thesis is the evaluation of the position of creditors and debtors in insolvency proceedings with a detail on discharge of debt. The aim of this thesis is to comprehensively elaborate on the issue using the Czech legislation and the European Union legislation. To deepen the legal analysis of the filing of claims the author uses already established court practice and other case law conclusions of higher courts, as well as professional literature. In addition to the descriptive method of defining the issue, the author also applies her own evaluating conclusions and considerations and uses the experience gained from her insolvency practice. The author describes the system of lodging claims including the analysis of the deadline for lodging claims and disputes arising from this regulation and further deals in detail with the lodgement form, its submission and the creditor's responsibility for the correctness of the lodgement. The author characterizes specially...

This paper examines determinants of creditors' claims satisfaction in insolvency proceedings in the Czech Republic. To our knowledge, it is the first research to such extent in the Czech Republic covering this field. Combining microdata from Insolvency Register, Business Register, Ministry of Finance and other sources, we construct a unique dataset of more than 2,600 cases. We identify several basic determinants of satisfaction: a higher share of secured claims, real estate and cash in assets of a company, submission of financial statements into Business Register, selling the business as a whole within the proceedings, and entrepreneur cases. We find no such effect for the audit of financial statements or for the age of a company. Moreover, we search for other indicators that may result in the lower satisfaction of claims, out of which five are statistically significant: a homeless person in statutory body, registered office at a firm nest, being listed as unreliable VAT payer, a connection to persons that have multiple records in Insolvency Register and a substantial increase in depreciation in the period between the last two submitted financial statements. In contradiction to the bankruptcy prediction literature, we show that the financial data are unreliable for predicting the outcome of insolvency...

Thesis: Selected Business Aspects of Insolvency Proceedings The reason why I have decided for my thesis topic is that the connection between business law and insolvency law is a field which has not been studied comprehensively so far. However my opinion is that these law branches have a lot in common as we can see daily their intersection in many insolvency proceeding. Object of this thesis is to describe the main areas in which clashes insolvency law with business law and then define questions which issue from this clash and answer those on which the Insolvency Act and Business Code do not offer clear answers. As I mentioned the connection between insolvency and business law is not focused comprehensively by doctrine. Therefore I work particularly with decided cases and legal interpretation books as sources for my thesis. The text offers two points of views on this topic. The first is aimed to company (especially its statutory body) which becomes insolvent. The second is aimed to third parties who do business with an insolvent company. The first part of my thesis is engaged in short description of historical development of insolvency law in Czech. Then it is focused on explanation of basic insolvency terminology in context of business law. The second part of the thesis deals with duties of...