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1
Boraine, André. „Does the Prevention of Illegal Eviction From and Unlawful Occupation of Land Act of 1998 Provide Adequate Family Home Protection to Insolvent Debtors or Is It Still Pie in the Sky? (Part 1)“. Obiter 41, Nr. 2 (01.10.2020): 199–225. http://dx.doi.org/10.17159/obiter.v41i2.9146.
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Although some legal systems provide some protection of the homestead or family home for the debtor when his or her estate is insolvent, such direct protective measures are absent in South African insolvency law. Such protection during insolvency can be provided by means of some level of exemption of the family home or homestead of the insolvent like in the insolvency laws of the USA, or by providing protection of occupancy to the insolvents and his or her dependants as is the case in England and Wales.In view of the developments in light of the right to housing as provided for in section 26 of the Constitution concerning the protection of the primary residence of a debtor in South African individual debt collecting and execution procedures, the question will be posed in Part 1 of this article if the same principles should apply in the case of a court hearing an application for compulsory sequestration, especially if the debtor raises the point that the sequestration order may render him or her homeless, should also be considered by such court. In this respect, no direct authority for this proposition could be found yet. (Commentators have argued for some time that the position of the homestead of the debtor in insolvency needs attention of the legislature as well but there has not been real progress in this regard to date.)However, there are a few judgments where the applicability of the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 (the PIE Act) after sequestration of the insolvent’s estate has been considered. Part 2 of the article will therefore be devoted to discuss developments in this regard and to consider what problems are encountered in applying the PIE Act during insolvency of the debtor and also if this Act provides sufficient protection to insolvent debtors to prevent them from being evicted from “their” homes where they cannot afford alternative accommodation.Against this background, the two parts of the article deal with different aspects of the issue under discussion. Ultimately the two parts are thematic to provide some answers to the pertinent question, namely if the PIE Act can provide effective interim and/or adequate protection to an insolvent debtor who may be evicted from his or her (former) homestead – in particular in the absence of direct measures in insolvency law, which protect insolvents and their dependants under these circumstances. In raising this question pertinent issues regarding the application of the PIE Act in insolvency also will be considered.
2
André Boraine. „Does the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act of 1998 provide Adequate Family Home Protection to Insolvent Debtors or Is It Still Pie in the Sky? (Part 2)“. Obiter 41, Nr. 4 (24.03.2021): 871–902. http://dx.doi.org/10.17159/obiter.v41i4.10492.
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Although some legal systems provide some protection for a debtor’s homestead or family home when his or her estate is insolvent, such direct protective measures are absent in South African insolvency law. Such protection during insolvency can be provided by means of some level of exemption for the insolvent’s family home or homestead, as in the insolvency laws of the USA, or by providing protection of occupancy to the insolvents and his or her dependants, as is the case in England and Wales.In view of developments concerning the protection of a debtor’s primary residence in South African individual debt collecting and execution procedures (in light of the right to housing provided for in section 26 of the Constitution), the question was posed in Part 1 of this article whether a court hearing an application for compulsory sequestration should apply the same principles, especially if the debtor raises the point that the sequestration order may render him or her homeless. In this respect, no direct authority for this proposition could be found. (Commentators have argued for some time that the position of the homestead of the debtor in insolvency needs the legislature’s attention as well, but there has not been real progress in this regard to date.)However, there are a few judgments in which courts have considered the applicability of the Prevention of Illegal Eviction From and Unlawful Occupation of Land Act 19 of 1998 (the PIE Act) after sequestration of the insolvent’s estate. Part 2 of the article is therefore devoted to discussing developments in this regard and to considering what problems are encountered in applying the PIE Act during a debtor’s insolvency. Part 2 also considers whether this Act provides sufficient protection to insolvent debtors to prevent them from being evicted from “their” homes when they cannot afford alternative accommodation.Against this background, the two parts of the article deal with different aspects of the issue under discussion. Ultimately, the two parts aim to provide some answers to the pertinent question – that is, whether the PIE Act can provide effective interim and/or adequate protection to an insolvent debtor who may be evicted from his or her (former) homestead, in particular in the absence of direct measures in insolvency law to protect insolvents and their dependants under these circumstances. In raising this question, pertinent issues regarding the application of the PIE Act in insolvency are also considered.
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AL-Shnikat, Murad Mahmoud. „The Meaning and Declaration of Commercial and Civil Insolvency under the Provisions of the Jordanian Insolvency Law No. 21 of 2018“. Journal of Politics and Law 13, Nr. 1 (29.02.2020): 161. http://dx.doi.org/10.5539/jpl.v13n1p161.
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The present study aimed to shed a light on commercial and civil insolvency under the provisions of the Jordanian insolvency law No. 21 of 2018. It aimed to explore the meaning and procedures of insolvency under the latter law. Under the latter law, the commercial insolvency is governed by the provisions of the insolvent debtor. Under the latter law, there are two types only of insolvency; imminent and actual insolvency. Under the latter law, the ones entitled to lodge an insolvency petition are: the creditor, debtor and the officer acting on behalf of the companies control department. Contrary to that, under the repealed provisions of the Jordanian commercial law, the ones entitled to lodge a bankruptcy petition are: the creditor, debtor, the court, and the public prosecution department. Several recommendations are suggested. For instance, the researcher recommends adjusting the criteria adopted by the Jordanian legislator for identifying the ones considered insolvent debtors to include more categories. Such criteria must include greater categories, such as: banks and insurance companies. He also recommends adjusting the latter criteria in order to exclude the ones who do not meet such criteria. He recommends authorizing the court to declare the insolvent debtor by itself as officially insolvent. He believes that such a power mustn’t be limited to debtors, creditors and the officer acting on behalf of the companies control department only. He recommends granting the power of lodging an insolvency petition to the court and the public prosecution department.
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Park, Sam Bock, Sung-Kyoo Kim und Sangryul Lee. „Earnings Management of Insolvent Firms and the Prediction of Corporate Defaults via Discretionary Accruals“. International Journal of Financial Studies 9, Nr. 2 (25.03.2021): 17. http://dx.doi.org/10.3390/ijfs9020017.
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Studies on the characteristics of insolvent firms’ earnings management are critical, as the ripple effects of a firm’s opportunistic accounting and insolvency on society can be widespread and significant. This study divides a dataset of unlisted firms into four groups (large firms that have received external audits; small- and medium-sized enterprises (SMEs) that received external audits; SMES that did not receive external audits; private businesses that did not receive external audits) and analyzes whether there are differences in terms of the discretionary accruals between groups. This study also uses discrete time logit regression to determine if the use of discretionary accruals is predictive of whether unlisted firms would become insolvent. This study used several models (a modified Jones model, a Kothari model, and performance matching model by ROA group) to measure discretionary accruals, which was used as a proxy for earnings management. The results of our study showed that, in the one year prior to insolvency, discretionary accruals were largest among non-externally audited private firms, followed by those of non-externally audited SMEs, externally audited SMEs, and externally audited large firms. The discretionary accruals of non-insolvent firms were larger than those of insolvent firms from the period of one year to three years preceding insolvency, and this difference increased as insolvency approached. The discretionary accruals were shown to have the ability to predict whether or not firms would become insolvent in two to three years before the occurrence of insolvency, but they did not support prediction for one year before the occurrence of insolvency. The findings suggest that additional accounting information should be used together to predict insolvency for unlisted firms.
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Evans, Roger G. „Legislative Exclusions or Exemptions of Property from the Insolvent Estate“. Potchefstroom Electronic Law Journal/Potchefstroomse Elektroniese Regsblad 14, Nr. 5 (08.06.2017): 38. http://dx.doi.org/10.17159/1727-3781/2011/v14i5a2598.
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The general policy in South African insolvency law is that assets must be recovered and included in the insolvent estate, and that this action must be to the advantage of the creditors of the insolvent estate. But there are several exceptions to this rule and an asset that is the subject of such an exception may be excluded from the insolvent estate. The Insolvency Act, however, does not expressly distinguish between excluded and exempt assets, thereby resulting in problem areas in the field of exemption law in insolvency in South Africa. It may be argued that the fundamental difference between excluded and exempt assets is that excluded assets should never form part of an insolvent estate and should be beyond the reach of the creditors of the insolvent estate, while exempt assets initially form part of the insolvent estate, but in certain circumstances may be exempted from the estate for the benefit of the insolvent debtor, thereby allowing the debtor to use such excluded or exempt assets to start afresh before or after rehabilitation. Modern society, socio-political developments and human rights requirements have necessitated a broadening of the classes of assets that should be excluded or exempted from insolvent estates. This article considers assets excluded from the insolvent estates of individual debtors by legislation other than the Insolvency Act. It must, however, be understood that these legislative provisions relate to insolvent estates and thus generally overlap in one way or another with some provisions of the Insolvency Act.
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Fritz, Carika, und Thabo Legwaila. „The intersection between taxation and insolvency — The South African Revenue Service’s preference“. South African Law Journal 138, Nr. 4 (2021): 799–817. http://dx.doi.org/10.47348/salj/v138/i4a6.
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When a debtor’s estate is sequestrated or an insolvent company is wound up, insolvency and taxation intersect whenever the debtor or company has an outstanding tax debt. This article considers whether the South African Revenue Service should, or could, be provided with a better standing in cases of insolvency. From a comparison of the situations in South Africa, Mauritius, Australia and the United Kingdom, it is clear that South Africa’s approach of determining the order of distribution in relation to tax claims based on the type of tax is in line with the approaches of Mauritius and the United Kingdom. However, s 179 of the Tax Administration Act and ss 114 and 147(1) of the Customs and Excise Act may have an impact on a claim by the South African Revenue Service in the event of insolvency. In this respect, we argue that, in instances where a taxpayer is sequestrated or wound up due to insolvency, the Insolvency Act and the Companies Act should take precedence. Since the Insolvency Act provides for a clear order of distribution both in respect of the insolvent estates of natural persons and when an insolvent company is wound up, tax legislation in South Africa should not be used to deviate from this order of distribution.
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Braun, Susanne. „German Insolvency Act: Special Provisions of Consumer Insolvency Proceedings and the Discharge of Residual Debts“. German Law Journal 7, Nr. 1 (01.01.2006): 59–70. http://dx.doi.org/10.1017/s2071832200004405.
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Information about the insolvency of big enterprises such as Enron and Worldcom in the United States; Bremer Vulkan, Philip Holzmann, Babcock Borsig, CargoLifter, Walter Bau and “Ihr Platz GmbH & Co KG” in Germany; and discussion about the insolvency of States (e.g. Argentina) has awakened public interest in insolvency law and proceedings. Both the high number of insolvent enterprises and the increasing rate of consumer insolvency are shocking.The German Insolvency Act of 1999 created a uniform insolvency statute for all of Germany. In most cases, upon the instituting of insolvency proceedings, only small or no-insolvency estates were available. As a result, creditors only received average distributions of between three and five percent. Approximately three quarters of all insolvency procedures could not be instituted because of an insufficient insolvency estate. A large number of the insolvency proceedings carried out by the courts had to be terminated prematurely due to lack of assets. This deficiency in the law, referred to as the “bankruptcy of bankruptcy,” is to be remedied by the new Insolvency Act, as a failure in instituting insolvency proceedings is damaging confidence in the German economy.
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Suri, Noémi. „Hungarian Model of the Restructuring Process - National Report“. Athens Journal of Law 10, Nr. 4 (01.10.2024): 603–12. http://dx.doi.org/10.30958/ajl.10-4-10.
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As a result of the transposition obligation in Article 34 of Directive (EU) 2019/ 1023 of the European Parliament and of the Council on restructuring frameworks and insolvency, Act LXIV of 2021 (hereinafter - referred to as the Restructuring Act) on restructuring and the amendment of certain acts with the purpose of legal harmonisation was promulgated on 3 June 2021, effective as of of 1 July 2022 for any legal persons struggling with financial difficulties not yet insolvent. The creation of a restructuring model prescribed by the EU directive was implemented by the Hungarian legislator through the opening of a non-contentious court procedure ordered within the jurisdiction and exclusive competence of the Metropolitan Court of Budapest. The primary aim of this paper is to develop a complex and comprehensive picture of the restructuring procedure as placed within the system of insolvency and reorganisation procedures in Hungary. Firstly, the paper showcases the unified EU objectives set out by the directive within the system of European insolvency procedures. Secondly, it describes the Hungarian procedural rules and the most important related legal institutions adopted to implement these objectives. Section 6 of the Restructuring Act sets out that the aim of restructuring is to adopt and implement a restructuring plan with some or all of the creditors and thus prevent the debtor’s future insolvency and ensure the debtor’s financial viability. For the purpose of reaching this objective, therefore, restructuring constitutes measures aiming at restoring the financial balance of the debtor, including changing the composition, the conditions or the structure of the debtor’s assets and liabilities and any other part of the debtor’s capital structure. Among these measures, the Restructuring Act lists as example the sale of the debtor’s property or part thereof, or the sale of any participation in the debt. The condition for restructuring is the likelihood of the company’s insolvency. The definition of the likelihood of insolvent Directive (EU) on restructuring frameworks and insolvency, European insolvency procedures, insolvency and reorganisation procedures, restructuring plan, non-contentious court procedure bears a central significance here: it constitutes the entrance point into the restructuring procedure. In addition to the definition of insolvency, Section 2(2) of the Restructuring and Insolvency Directive renders the interpretation of the probability of insolvency into Member State jurisdiction. Among the Explanatory notes the Restructuring Act defines the likelihood of becoming insolvent as a situation in which there are reasonable grounds for believing that the debtor will be unable to meet his/her outstanding payment obligations when they fall due, unless further measures are taken. Keywords: Directive (EU) on restructuring frameworks and insolvency; European insolvency procedures; Insolvency and reorganisation procedures; Restructuring plan; non-contentious court procedure
9
Yukhumenko, V. „INSOLVENCY OF INSURANCE COMPANIES IN UKRAINE: DETECTION AND PROGNOSTICATION“. Innovative Solution in Modern Science 5, Nr. 41 (03.11.2020): 73. http://dx.doi.org/10.26886/2414-634x.5(41)2020.6.
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The paper demonstrates the results of research on the problems of insurance company insolvency. The outcomes describe the basic principles of detection and using the early warning system in Ukraine. The paper shows the necessity to reorganize the basic principles of the detection of local insolvent insurers. The study also determines the groups of persons who are directly or indirectly interested in the insurer's solvency assessment. This work presents the system of insurance companies' insolvency indicators, which help to identify insolvency at the early stages. The paper distinguishes precautionary, delayed, internal, and external insolvency indicators of insurers. The study divides the values of insurer's insolvency indicators into "yellow" and "red" zones to increase the flexibility of using various instruments for influencing by the regulator depending on the level of danger of the insurance company. This work argues for taking timely measures to the threat of insolvency of the insurance companies by the insurance supervisor.Key words: insolvency, instability of the insurers, solvency, early warning system, insurance market.
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Edmon, Safari. „A critical assessment of administration as a rescue mechanism of an insolvent corporate debtor in Uganda“. NEWPORT INTERNATIONAL JOURNAL OF CURRENT RESEARCH IN HUMANITIES AND SOCIAL SCIENCES 4, Nr. 3 (21.04.2024): 70–74. http://dx.doi.org/10.59298/nijcrhss/2024/4.3.7074.
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Insolvency law enhances growth and alleviates financial challenges of businesses, but it can also be inefficient and delay commercial justice. This article critically evaluated Uganda's insolvent corporate debtor administration method and impacts. At the end, the article call for the bankruptcy protective order duration to be extended to at least a month in order to allow a debtor to establish payment arrangements. This period may be sufficient for the bankrupt to decide on the next steps to take to clear their debts, compared to the 14 days allowed under present insolvency law. Without increasing this term, the temporary protection order will fail since the bankrupt will still be panicked and may sell his/her business property at a loss. It is also recommended by the study for legal training to be organized for insolvency practitioners. This will ensure that only trained insolvency practitioners can practice. Finally, there is urgent need for enhanced insolvency law. Keywords: Insolvency, Administration, Corporate debtor, Creditor, Insolvency practitioners
11
Fauzi, M. „Insolvency within Bankruptcy: The Case in Indonesia“. SHS Web of Conferences 54 (2018): 06004. http://dx.doi.org/10.1051/shsconf/20185406004.
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The Bankruptcy institutions are an extraordinary mechanism in debt settlement. The extraordinary characteristic distinguishes bankruptcy institutions with other mechanisms in debt settlement. This particular characteristic stems from the debtor’s inability to pay all of his debts due. However, two of the Indonesian bankruptcy laws do not include insolvency conditions as the basis for granting bankruptcy status to the debtor. Such legal politics resulted in the use of bankruptcy institutions deviated from their philosophy and vulnerable to abuse. With a post-positivist approach, this paper examines the position of insolvency tests on bankruptcy institutions, why insolvency tests are not carried out in Indonesian bankruptcy law, and how to place insolvency tests in Indonesian bankruptcy law. This study concludes that test insolvency is an essential element of bankruptcy institutions. Without insolvency tests, the bankruptcy institutions lose its raison d’etre. Proving that the debtor in insolvent condition cannot be done easily, so that Insolvency test is not used as a condition in granting bankruptcy status for debtors in Indonesia. Insolvency tests should serve as the basis for granting bankruptcy status to debtors by setting aside the principle of simple evidentiary systems. Thus, only by applying insolvency tests of bankruptcy institutions work properly.
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Keay, Andrew. „THE HARMONIZATION OF THE AVOIDANCE RULES IN EUROPEAN UNION INSOLVENCIES“. International and Comparative Law Quarterly 66, Nr. 1 (16.11.2016): 79–105. http://dx.doi.org/10.1017/s0020589316000518.
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AbstractCross-border transactions and resultant legal proceedings often cause problems. One major problem is knowing which law should govern the transaction and any legal proceedings. Cross-border insolvencies in the EU are subject to the European Regulation on Insolvency Proceedings (EIR) but this legislation does not determine which substantive insolvency law rules apply in a given insolvency. There are many differences in the insolvency rules applicable in the various EU Member States and this has caused concern in relation to the avoidance of transactions entered into by an insolvent prior to the opening of insolvency proceedings. In light of this, the paper examines options to address divergence between national avoidance rules. One option, harmonization, is analysed as well as its possible benefits and drawbacks.
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Warsito, Lilik. „Urgensi Pembuktian Syarat Kepailitan dan Tes Insolvensi Dalam Permohonan Kepailitan“. JURNAL USM LAW REVIEW 7, Nr. 2 (30.06.2024): 822. http://dx.doi.org/10.26623/julr.v7i2.9018.
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<p><em>This study aims to analyze the conditions of insolvency and the role of the bankruptcy test in bankrupt proceedings under Act No. 37 of 2004 on Insolvencies and Delayed Debt Payment Obligations. (UUK-PKPU). In the context of Indonesian law, insolvency proceedings are regarded as a final settlement mechanism for debtors who are unable to pay their debts. This research is urgent given the severity of insolvency cases that affect not only debtors and creditors but also the economy as a whole. This normative law research uses a library-based approach by analyzing secondary data such as legislative regulations, court rulings, and related literature. The findings show that the current insolvency conditions are too simple, requiring only the presence of two or more creditors and the inability to pay one debt that has been due. The study criticizes the failure of the insolvency test as a condition of insolventness, which is important in determining whether the debtor is really in a position to be unable to pay his debt. The absence of the insolvency test could lead to a company with sufficient assets still to pay its declared debt, which in turn could harm the economy and create uncertainty for investors. The study recommends a revision of the UUK-PKPU to restore the insolvency test as one of the conditions of insolvents, ensuring that only debtors who are truly unable to pay their debts can be declared to be pailit as the debtor provides better protection to debtors that are still solvent and prevents the abuse of the process as a means to charge debts quickly. </em></p><p><em> </em><em> </em></p><p align="center">Penelitian ini bertujuan untuk menganalisis syarat-syarat kepailitan dan peran tes insolvensi dalam proses kepailitan berdasarkan Undang-Undang No. 37 Tahun 2004 tentang Kepailitan dan Penundaan Kewajiban Pembayaran Utang (UUK-PKPU). Dalam konteks hukum Indonesia, proses kepailitan dianggap sebagai mekanisme penyelesaian akhir untuk debitur yang tidak mampu membayar utangnya. Penelitian ini memiliki urgensi mengingat maraknya kasus kepailitan yang tidak hanya berdampak pada debitur dan kreditur, tetapi juga pada ekonomi secara keseluruhan. Penelitian hukum normatif ini menggunakan pendekatan kepustakaan dengan menganalisis data sekunder berupa peraturan perundang-undangan, putusan pengadilan, dan literatur terkait. Hasil penelitian menunjukkan bahwa syarat-syarat kepailitan yang diberlakukan saat ini terlalu sederhana, hanya memerlukan adanya dua atau lebih kreditur dan ketidakmampuan membayar satu utang yang telah jatuh tempo. Penelitian ini mengkritik hilangnya tes insolvensi sebagai syarat kepailitan, yang mana tes tersebut penting untuk menentukan apakah debitur benar-benar dalam kondisi tidak mampu membayar utangnya. Absennya tes insolvensi dapat menyebabkan perusahaan dengan aset yang masih cukup untuk membayar utangnya dinyatakan pailit, yang pada gilirannya dapat merugikan perekonomian dan menimbulkan ketidakpastian bagi investor. Penelitian ini merekomendasikan revisi pada UUK-PKPU untuk mengembalikan tes insolvensi sebagai salah satu syarat kepailitan, memastikan bahwa hanya debitur yang benar-benar tidak mampu membayar utangnya yang dapat dinyatakan pailit sebagai bentuk memberikan perlindungan lebih baik kepada debitur yang masih <em>solven</em> serta mencegah penyalahgunaan proses kepailitan sebagai alat untuk menagih utang secara cepat.</p><p> </p>
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Rondar', Natal'ya, und Ekaterina Goncharova. „Management of construction complex enterprises and organization of their functioning in conditions of economic insolvency“. Construction and Architecture 9, Nr. 1 (02.01.2021): 81–85. http://dx.doi.org/10.29039/2308-0191-2021-9-1-81-85.
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The article reveals the system characteristics of economic insolvency in the construction complex, its essence as a process, and its functional components. The main models of the course of economic insolvency of construction industry enterprises are formed, the process of insolvency is structured, including both the stages of economic and the stages of institutional regulation. This analysis contributes to the improvement of the mechanism for managing economic insolvency, makes it more effective and allows optimizing the functioning and development of the national economy by reducing the number of economically insolvent enterprises in the construction industry, reducing economic and investment risks and strengthening financial discipline.
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Klingwort, Jonas, Sven Alexander Brocker und Christian Borgs. „Spatial and demographic distributions of personal insolvency: An opportunity for official statistics“. Statistical Journal of the IAOS 39, Nr. 4 (15.12.2023): 921–31. http://dx.doi.org/10.3233/sji-230072.
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German official statistics publish statistics on personal insolvency. These statistics have been recently enhanced using web scraping to extract additional information from a public website on which the insolvency announcements are published. The currently scraped data is used for quality assurance and to derive an early indicator of personal insolvency. This paper provides novel methodological analyses for the same administrative database and presents further opportunities to improve the current official statistics regarding detail and timeliness using web scraping and text mining. These newly derived statistics inform on several aspects regarding personal insolvency’s demographic and spatial distribution.
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Rodríguez Rodrigo, Juliana. „Bienes sujetos a un procedimiento secundario de insolvencia. Comentario a la sentencia del Tribunal de Justicia de la Unión Europea, de 11 junio 2015, Nortel, c-649/13 = Debtor’s assets falling within the scope of the effects of the secondary proceedings. Judgment of the Court (first chamber) of 11 june 2015, Nortel, case c-649/13“. CUADERNOS DE DERECHO TRANSNACIONAL 9, Nr. 2 (05.10.2017): 692. http://dx.doi.org/10.20318/cdt.2017.3898.
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Resumen: En esta sentencia, el Tribunal de Justicia contesta a una cuestión prejudicial que plantea un órgano judicial francés en el marco de un procedimiento secundario de insolvencia. El tribunal remitente quiere saber qué órgano jurisdiccional es competente para determinar los bienes sujetos al procedimiento secundario –si el juez del procedimiento principal o el del secundario– y qué ley debe aplicar el tribunal competente para establecer cuáles son esos bienes –si la ley del procedimiento principal o la ley del procedimiento secundario–.Palabras clave: insolvencia, procedimiento secundario de insolvencia, bienes del deudor.Abstract: In that judgment, the Court answers a question referred by a French court in the context of secondary insolvency proceedings. The referring court wishes to know which court is competent to determine the assets subject to the secondary proceedings – if the judge in the main proceedings or the secondary court – and which law should be applied by the competent court to establish what those assets are – if the law of main procedure or the law of the secondary procedure.Keywords: insolvency, secondary insolvency proceedings, debtor’s assets.
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Predelus, Wilner, und Samir Amine. „The insolvency choice during an economic crisis: the case of Canada“. Quantitative Finance and Economics 6, Nr. 4 (2022): 658–68. http://dx.doi.org/10.3934/qfe.2022029.
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<abstract> <p>Total insolvencies filed by Canadian Households reached a record number in 2009 when close to 152,000 individuals sought the protection of the Bankruptcy and Insolvency Act. This paper aims to investigate the factors that dictate the choice of insolvent debtors during an economic crisis, by comparing their choice before, during and after the crisis. Using data provided by the Office of the Superintendent of Bankruptcy, and in addition to explain insolvency choice by the debtor's wealth, income and level of debt, the results show that insolvent debtors are more likely to file for bankruptcy during an economic crisis than before and after. This is in fact, a significant contribution to the literature, for never before had debtors' insolvency choice been looked at in light of the effects of an economic crisis.</p> </abstract>
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Draguiev, Deyan. „The Effect of Insolvency on Pending International Arbitration: What Is and What Should Not Be“. Journal of International Arbitration 32, Issue 5 (01.10.2015): 511–42. http://dx.doi.org/10.54648/joia2015024.
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Situations in which the respondent in international arbitral proceedings is declared insolvent in its jurisdiction of incorporation while the arbitration is still pending are not uncommon. They raise a number of choice of law issues both in terms of substantive and procedural law. While the roots of arbitration lie in party autonomy, insolvency laws are often comprised of mandatory rules protecting the interests of different classes of stakeholders. This article attempts to devise an abstract model of the various choice of law and characterzation problems regarding the cross-border effect of the insolvency and provide reasoned options and solutions for the arbitral tribunal faced with the interaction between insolvency and pending arbitration proceedings. It is suggested that it is part of the arbitrators’ duty to render an enforceable award to consider cautiously the effects of insolvency, especially if there is a risk of a clash with the mandatory framework of insolvency either at the seat of the arbitration or the likely place of enforcement of the award. The arguments are tested against recent case law of various national courts having reviewed the conflicts between arbitration and insolvency.
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Navarro-Galera, Andrés, María Elena Gómez-Miranda, Juan Lara-Rubio und Dionisio Buendía-Carrillo. „Empirical research to identify early warning indicators of insolvency in small and medium-sized enterprises (SMEs)“. Revista de Contabilidad 27, Nr. 2 (01.07.2024): 344–56. http://dx.doi.org/10.6018/rcsar.554181.
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In Europe, the contribution of SMEs is enormous in terms of job creation and added value, although in recent years worrying levels of business failure and disappearance have occurred. These circumstances have led various researchers and international organisations to recognise the need for indicators that will enable the early detection of insolvency risks so that preventive and corrective measures can be taken. In this context, Directive (EU) 2019/1023 obliges EU Member States to define early warning indicators of insolvency, and in most cases has been transposed into the respective national regulations. The present paper aims to identify financial and non-financial indicators of insolvency risks in SMEs, to facilitate early detection. To this end, we analyse a sample of 1,736 Spanish SMEs, studying their behaviour for the period 2010-2020. Certain financial and non-financial factors are identified as early warning indicators of insolvency, a result that will prove useful both for the self-diagnosis of insolvency and for the design of restructuring plans to enhance SMEs’ chances of survival. En Europa, la contribución de las PYMEs es enorme en términos de creación de empleo y valor añadido, aunque en los últimos años se han producido preocupantes niveles de quiebra y desaparición de empresas. Estas circunstancias han llevado a diversos investigadores y organismos internacionales a reconocer la necesidad de contar con indicadores que permitan detectar precozmente los riesgos de insolvencia para poder adoptar medidas preventivas y correctoras. En este contexto, la Directiva (UE) 2019/1023 obliga a los Estados miembros de la Unión Europea a definir indicadores de alerta temprana de insolvencia, y en la mayoría de los casos ha sido transpuesta a las respectivas normativas NACIONALES. El objetivo del presente trabajo es identificar indicadores financieros y no financieros de riesgos de insolvencia en las pymes, para facilitar su detección temprana. Para ello, se analiza una muestra de 1.736 PYMEs españolas, estudiando su comportamiento para el periodo 2010-2020. Se identifican determinados factores financieros y no financieros como indicadores de alerta temprana de insolvencia, un resultado que resultará útil tanto para el autodiagnóstico de insolvencia como para el diseño de planes de reestructuración que mejoren las posibilidades de supervivencia de las PYMEs.
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Wessels, Bob. „Europe Deserves a New Approach to Insolvency Proceedings“. European Company Law 4, Issue 6 (01.12.2007): 253–59. http://dx.doi.org/10.54648/eucl2007061.
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Alshakhanbeh, Khaled Abed. „Company Controller's Role as One Way to Rescue Companies under Jordanian's Insolvency Act 2018 "Comparative Study"“. Journal of Politics and Law 15, Nr. 1 (22.11.2021): 25. http://dx.doi.org/10.5539/jpl.v15n1p25.
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The main objective of this article is to shed light on the new emergence on the Jordanian insolvency Act no. 21 of 2018, after it became independent from the commercial law, specifically the role of the companies general controller through the application of the provisions of this law to rescue company as much as possible from stopping running its business activates and then its insolvency. In this article, the Jordanian law was compared with English law in order to compel Jordanian legislator to benefit from other legislation, given that the Jordanian law is still recent.
This article dealt with the issue of corporate rescue and the role of the company controller in starting company insolvency procedures, in accordance with the provisions of the Jordanian Insolvency Act 2018; with refer to the provisions of the UNCITRAL Insolvency Legislative Guide 2004.
This article concluded that Jordanian legislator must develop a rescue culture by putting in place protection for insolvent companies, such as a moratorium and expanding the means of rescue, rather than limiting the rescue culture to the reorganization plan that is adopted by the UNCITRAL Legislative Guide of Insolvency 2004. In addition, Jordanian legislators must make some legal amendments that are in line with recommendations made by legal authorities within the framework of the company controller role in the Jordanian Insolvency Act 2018.
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Vasiu, Diana Elena. „Could The Insolvency Risk for Companies Traded on Bucharest Stock Exchange have been Identified? A Case Study Using the Altman Model“. Land Forces Academy Review 23, Nr. 4 (01.12.2018): 306–12. http://dx.doi.org/10.2478/raft-2018-0038.
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Abstract Insolvency represents the state of the debtor’s patrimony characterized by insufficient funds available for the payment of certain, liquid and due debts. It may occur even in case of strong companies, for example, in case of listed companies, generating loses for investors. In economic theory, a series of insolvency risk prediction models were developed, based on the method of scores, the most known and used being the Altman model. At the present moment, five companies, traded at Bucharest Stock Exchange are insolvent. The aim of this paper is to establish if the Altman model can successfully be used for Romanian traded companies, to determine the risk of insolvency.
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Shubhan, M. Hadi. „Legal Protection of Solvent Companies from Bankruptcy Abuse in Indonesian Legal System“. Academic Journal of Interdisciplinary Studies 9, Nr. 2 (10.03.2020): 142. http://dx.doi.org/10.36941/ajis-2020-0031.
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In bankruptcy legal system in Indonesia, the court can issue bankruptcy verdict without assess a company’s solvency condition, whether the company is solvent or insolvent. The provision of this law is very prone to be misused by creditors with bad faith. Insolvency test is able to protect debtors and to prevent the abuse of bankruptcy by malice creditors. This paper aims to analyze the legal protection of solvent companies from bankruptcy abuse in Indonesian legal system. By using normative and juridical approach, the results showed that the insolvency test can be included in the future amendment of Indonesian bankruptcy law. The implementation of insolvency test therefore is not administered outside the bankruptcy proceedings, but still in the respective bankruptcy proceedings. Insolvency test can be implemented by judges based on convincing evidences such as money report made by registered Public Accountant Office. A debtor, with bad faith, should not be eligible to get protection to avoid himself from bankruptcy with the insolvency test, although the debtor has good solvability.
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Šarlija, Nataša, Sanja Šimić und Biljana Đanković. „What is the Relationship Between Sales Growth and Insolvency Risk?“ Naše gospodarstvo/Our economy 69, Nr. 3 (01.09.2023): 1–11. http://dx.doi.org/10.2478/ngoe-2023-0013.
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Abstract Sales growth is essential for an enterprise’s survival and financial growth. If an enterprise manages to achieve sales growth, its expansion can be accomplished. However, does sales growth always have only positive effects? If the enterprise is not collecting enough cash, it can miss a payment on its debt, triggering a series of events that can lead to its insolvency. The goal of the paper is to explore the relationship between an enterprise's sales growth and its insolvency. The relationship is tested empirically on the data set of 4271 SMEs in Croatia. The results confirmed that there is a relationship between sales growth and insolvency. Better indicators exist with solvent and growing SMEs than with insolvent and non-growing. Results have also shown that high growth can be at the same time a high risk. The paper contributes to a deeper understanding of the relationship between sales growth and insolvency and empirically demonstrates that sales growth over 200% per year induces the highest probability of insolvency compared to other lower levels of growth.
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Dinis, Ana Cristina dos Santos Arromba, Cidália Maria da Mota Lopes, Alexandre Miguel Fernandes Gomes da Silva und Pedro Miguel de Jesus Marcelino. „Taxation of Insolvent Companies: Empirical Evidence in Portugal“. Revista Contabilidade & Finanças 27, Nr. 70 (01.03.2016): 43–54. http://dx.doi.org/10.1590/1808-057x201500020.
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This article discusses the issue of taxation of insolvent companies in Portugal, particularly regarding the Portuguese tax on revenue of legal entities (IRC). For this purpose, first, some considerations on the legal framework of insolvent companies are woven and, second, their tax regime is analyzed. Then, a brief review of the main studies that, in the international context, analyze and debate major issues derived from the tax regime of insolvent companies is conducted, particularly in Brazil, Spain, United States, and Italy. Finally, there are the results of an empirical study conducted in Portugal, in 2013, which evaluates and compares the opinions of insolvency administrators (IA), the tax and customs authority (TA), and court magistrates (CM), in order to contribute to a better solution concerning business taxation under this regime. Respondents (IA, TA, CM) demonstrate objective thinking about the fact they believe it is very important that the Portuguese Code of Insolvency and Business Recovery (CIRE) and the Portuguese Code of Tax on Revenue of Legal Entities (CIRC) are modified, now to make clear whether the settlement of property ownership of an insolvent estate is liable to the IRC, then to assign a chapter specifically devoted to the subject of taxation on insolvency in Portugal.
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Rudenko, L. D., und M. D. Zhitelny. „Grounds for initiating proceedings in the case of insolvency of an individual“. Legal horizons, Nr. 24 (2020): 47–52. http://dx.doi.org/10.21272/legalhorizons.2020.i24.p46.
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The article specifies the grounds for initiating proceedings in the case of insolvency of an individual on the basis of a comprehensive comparative analysis of foreign experience, scientific literature, national legislation and practice of its application. Based on the analysis of the legislation and case law, it is noted that the Bankruptcy Code does not clearly define the term "threat of insolvency". Article 115 of the Code states that the threat of insolvency includes circumstances that confirm that in the near future the debtor will not be able to meet its monetary obligations or make normal current payments. It is argued that the lack of definition of "threat of insolvency" in the Code is a shortcoming of current legislation, and therefore this rule needs to be clarified in terms of confirming the inability of the debtor to meet financial obligations, the terms of default. It is proposed to define "threat of insolvency" as a set of documented legal grounds that indicate the inability of the debtor to meet its own financial obligations or make regular financial payments over the next two months. The expediency of determining in Article 115 of the Bankruptcy Procedure Code an exclusive list of grounds for initiating insolvency proceedings against an individual is argued. Consolidation in Art. 115 of the Code of the inexhaustible list complicates law enforcement as provides a possibility of application of norms of other regulatory legal acts; provides wide discretion to the court, which creates conditions for the abuse of procedural rights for both participants in the bankruptcy proceedings and judges. The peculiarities of initiating proceedings to restore the solvency of an individual are specified: only the debtor himself may apply to the court to declare an individual insolvent. In order to reduce the financial burden on an insolvent individual in the implementation of bankruptcy proceedings, it is proposed to give the creditor the right to initiate legal proceedings for the insolvency of such a person.
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Schönfeld, Jaroslav. „FINANCIAL SITUATION OF PRE-PACKED INSOLVENCIES“. Journal of Business Economics and Management 21, Nr. 4 (11.06.2020): 1111–27. http://dx.doi.org/10.3846/jbem.2020.12820.
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This paper is focused on the financial situation of companies entering insolvency proceedings. It does not work with all kinds of the insolvent companies, but this paper concentrates on one specific issue. The issue is pre-pack insolvencies. The main aim is to show if the financial situation is an important factor for consent to pre-pack. The pre-pack insolvencies are insolvency cases which start with an insolvency proposal which is accompanied by a reorganization plan already approved by creditors. Prepacks should help make the insolvency process quicker and enable enterprise financial rehabilitation and sustain the going concern principle. On the other hand, the procedure can hardly be successful when the financial situation of the company is extremely poor. Therefore this paper evaluates the financial situation of the companies with pre-packed insolvency in the Czech Republic. The analysis of companies was conducted over one, two or three year periods prior to the companies entering an insolvency proceeding. According to the literature, financial indicators used for evaluation are commonly EBITDA, cash liquidity, debt ratio, ROA and the Altman Z-Score prediction model. Results for the individual enterprises are summed up in this paper using basic descriptive and variable statistics. Conclusions have especially practical implications because they show financial inability of majority pre-packed cases.
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Iancu, Lavinia-Olivia. „Covid Influence in Insolvency in Romania“. Athens Journal of Law 9, Nr. 4 (02.10.2023): 583–96. http://dx.doi.org/10.30958/ajl.9-4-5.
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The Covid pandemic installed at the beginning of 2020 influenced the matter of insolvency. A series of measures were adopted to protect de debtors already insolvent on one hand, and new procedures were established on the other hand to ensure the ongoing insolvency proceedings. We can observe a special attention of the legislator in protecting legal person debtors compared to natural person debtors. Although the pandemic deeply affected citizens, they did not access the insolvency procedure of the natural person, but this procedure could represent a solution for overcoming their financial difficulties. The Romanian legislator did not intervene in the modification of the legal text, although the doctrine claimed a complicated procedure, with generally unattractive and interpretable notions. The financial difficulties faced by the business environment convinced the Romanian legislator, in 2022, to focus on insolvency prevention procedures, creating a modern framework for extrajudicial negotiations of the debts with the creditors. Although a year has passed since the end of the state of alert in Romania, and the effects of the pandemic are still visible, the method of administering insolvency procedures that offers effective solutions implemented during Covid period has been preserved. Keywords: Law; Insolvency; Legal persons; Natural persons; Covid
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Hartono, Evelyn, und Ariawan Gunadi. „Reformation of Indonesian Insolvency Regulation on Execution of Cross-Border Assets Based on the European Union“. Syntax Literate ; Jurnal Ilmiah Indonesia 8, Nr. 11 (29.11.2023): 6855–62. http://dx.doi.org/10.36418/syntax-literate.v8i11.14100.
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The current possibility of hassle-free negotiations and transactions across countries allows international trade to be a significant source of profit for businesses in Indonesia. In the process, businesses are often exposed to risks of insolvency for being unable to repay debts. An insolvent debtor owning assets in other countries shifts the case to a cross-border insolvency case. As there is currently an absence of cross-border insolvency regulation in Indonesia, this paper therefore aims to reform Indonesian insolvency regulation through analyzing and applying learning points from the European Union’s success in managing cross-border insolvency. This paper identifies as legal normative research and is done through prescriptive analysis. The data used is secondary data obtained through a literature review, which includes primary and secondary sources. This paper uses the statute approach and will be analyzed qualitatively. Through the discussion, it is suggested that Indonesia adopt several relevant aspects of the EU regulation. To ease implementation, Indonesia should consider moving towards the reformation as a part of ASEAN. Alternatively, Indonesia can also independently engage in bilateral or multilateral treaties. To add on, Indonesia should advance from the idea of absolute territorialism or absolute universalism and instead seek to implement modified universalism in its cross-border insolvency regulation.
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Krasnova, Iryna V., und Viktoria S. Stepanets. „The European Integration Imperatives for Bank Resolution in Ukraine“. Business Inform 8, Nr. 547 (2023): 217–28. http://dx.doi.org/10.32983/2222-4459-2023-8-217-228.
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The aim of the article is to study the economic essence and ways to settle the insolvency of banks in the context of European regulatory imperatives. Not all banks are capable of stable functioning under conditions of economic imbalances, crises and uncertainty, which leads to the withdrawal of banks from the market. The European vector of Ukraine’s development requires the implementation of European rules for resolving bank insolvency in order to reduce the negative consequences of their possible bankruptcy. Attention is focused on the understanding of an insolvent bank as financially unstable. The manifestations of insolvency are defined and it is proposed to distinguish between full and technical (technical default) insolvency of banks. Practical examples of such interpretation are provided, in particular, JSC «JSCB «Arkada» – as an example of a complete default and JSC «Bank Sich» – as an example of a technical default on the realized market risk. The article discloses the essence, factors and signs of insolvency, which are constantly evolving. It is noted that, in fact, insolvency is manifested in the square formed of four concepts – incapacity, non-fulfillment, non-payment, and insolvency. The content of insolvency settlement is disclosed, which provides for the adoption of appropriate measures aimed at preventing and/or overcoming the consequences of the bank’s inability to perform (partially or completely) its functional duties in case of any type of insolvency. Certain stages of bank insolvency and measures of influence have been allocated. In accordance with the European BRRD Directive, the goals and principles of insolvency settlement have been formulated. The objectives must be balanced according to the nature and circumstances of each case, and they also influence the choice of method and tools of settlement. The need to harmonize domestic legislation with European rules is noted. In particular, the BRRD recommends the following settlement tools: asset separation tool, bail-in tool, sale of business tool, bridge institution tool. The article discloses the directions of their implementation in domestic practice.
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Madaus, Stephan, und F. Javier Arias. „Emergency COVID-19 Legislation in the Area of Insolvency and Restructuring Law“. European Company and Financial Law Review 17, Nr. 3-4 (14.09.2020): 318–52. http://dx.doi.org/10.1515/ecfr-2020-0018.
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The appearance of the COVID-19 in Europe has prompted lawmakers to introduce public health measures that inevitably hurt the economy by reducing economic activity and business revenues. The foreseeable risk that the pandemic could be followed immediately by a bankruptcy epidemic led to the adoption of rules related to insolvency and restructuring laws in emergency legislation in most European countries. These rules aim at avoiding businesses to become insolvent either by suspending insolvency tests (see II.) or by providing cash support and debt moratoria (see III.). They may also contain measures that indirectly affect insolvency and restructuring proceedings (see IV.). This paper explains the logic behind emergency legislation and the specific rules adopted in European countries.
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Khan, Shereen, Nasreen Khan und Olivia Swee Leng Tan. „DIRECTORS’ DUTY AND LIABILITY IN INSOLVENT TRADING“. International Journal of Law, Government and Communication 5, Nr. 21 (06.12.2020): 130–37. http://dx.doi.org/10.35631/ijlgc.5210010.
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The effect of the novel coronavirus (Covid-19) pandemic has resulted in current and future liquidity, balance sheet, and cash flow problems. There is an anticipated decline in the profitability of the businesses during this uncertain period and attention has been turned to the directors’ ‘duties and liabilities’ to creditors when the company is on the verge of insolvency. Directors have to strike a balance among the shareholders, creditors, and workers in the corporate restructuring process. In engaging with these stakeholders during the transformation process, the directors play a key role. It is about quick choices and decisions to be taken to save a business on the verge of insolvency, and it is therefore vital that directors act at the first sign of financial distress. There is a general duty for directors not to trade when insolvent or close to the point of insolvency. Directors also have a contractual obligation to avoid insolvent trading. This article discusses the duties of directors under the Companies Act 2016 (CA 2016) to avoid insolvent trading. It further discusses by analysing based on the comparative study with other selected jurisdictions. This article proposes that while it is important to protect creditors’ interest by making the directors personally liable for insolvent trading, for the best interest of all stakeholders, there should be a balance between the security of creditors and the rescue of the company.
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Dwi Sulistyany, Frygyta, und Seftyana Wahyu Murwani. „Insolvency Test sebagai Metode guna Mengatasi Permasalahan Terkait Manipulasi Kepailitan oleh Kreditor yang Beriktikad Buruk“. YUDHISTIRA : Jurnal Yurisprudensi, Hukum dan Peradilan 2, Nr. 2 (28.06.2024): 22–32. http://dx.doi.org/10.59966/yudhistira.v2i2.1079.
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Undang-Undang Nomor 37 Tahun 2004 memberikan opsi kepada kreditor dan debitor untuk memilih antara mengajukan permohonan kepailitan atau Penundaan Kewajiban Pembayaran Utang. Penundaan Kewajiban Pembayaran Utang memberi debitor kesempatan untuk mengajukan usulan perdamaian kepada kreditor untuk menghindari pailit. Jika usulan perdamaian ditolak, debitor bisa dinyatakan pailit dan kehilangan hak untuk melakukan kasasi atau peninjauan kembali. Hal ini menyoroti sebuah celah hukum yang perlu dipertimbangkan, yaitu perlunya pengadilan melakukan insolvency test dengan tujuan untuk memastikan bahwa pengajuan kepailitan tidak disalahgunakan. Dalam mengkaji insolvensy test, muncul beberapa rumusan masalah, yaitu: (1) Bagaimana urgensi penerapan Insolvency Test dalam proses kepailitan dan Penundaan Kewajiban Pembayaran Utang di Indonesia yang telah diusulkan pada Naskah Akademik Rancangan Undang-Undang Tahun 2018?; dan (2) Bagaimana wewenang hakim Pengadilan Niaga dalam mengimplementasikan Insolvency Test menurut Undang-Undang Kepailitan dan Penundaan Kewajiban Pembayaran Utang?. Untuk menjawab rumusan masalah tersebut, penulis menggunakan jenis penelitian yuridis normatif dengan metode analisis kualitatif dengan pendekatan perundang-undangan dan pendekatan konseptual. Adapun hasil yang dicapai dari pembahasan ini berupa rekomendasi bagi legislator untuk merumuskan ketentuan baru terkait insolvency test dalam Undang-Undang Kepailitan dan Penundaan Kewajiban Pembayaran Utang di masa depan.
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Lee, Sanghoon, Keunho Choi und Donghee Yoo. „Predicting the Insolvency of SMEs Using Technological Feasibility Assessment Information and Data Mining Techniques“. Sustainability 12, Nr. 23 (24.11.2020): 9790. http://dx.doi.org/10.3390/su12239790.
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The government makes great efforts to maintain the soundness of policy funds raised by the national budget and lent to corporate. In general, previous research on the prediction of company insolvency has dealt with large and listed companies using financial information with conventional statistical techniques. However, small- and medium-sized enterprises (SMEs) do not have to undergo mandatory external audits, and the quality of accounting information is low due to weak internal control. To overcome this problem, we developed an insolvency prediction model for SMEs using data mining techniques and technological feasibility assessment information as non-financial information. We divided the dataset into two types of data based on three years of corporate age. The synthetic minority over-sampling technique (SMOTE) was used to solve the data imbalance that occurred at this time. Six insolvency prediction models were created using logistic regression, a decision tree, an artificial neural network, and an ensemble (i.e., boosting) of each algorithm. By applying a boosted decision tree, the best accuracies of 69.1% and 82.7% were derived, and by applying a decision tree, nine and seven influential factors affected the insolvency of SMEs established for fewer than three years and more than three years, respectively. In addition, we derived several insolvency rules for the two types of SMEs from the decision tree-based prediction model and proposed ways to enhance the health of loans given to potentially insolvent companies using these derived rules. The results of this study show that it is possible to predict SMEs’ insolvency using data mining techniques with technological feasibility assessment information and find meaningful rules related to insolvency.
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Budiono, Doni, und Maria Clarisa Talia. „Limited Liability Company's Status After Insolvency: Dissolution or Rehabilitation?“ Pandecta Research Law Journal 18, Nr. 2 (25.12.2023): 280–99. http://dx.doi.org/10.15294/pandecta.v18i2.48203.
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Bankruptcy and postponement of debt payment obligations are facilities given by law to encourage collective debt settlement for debtors that are experiencing financial distress and therefore on a status of bad credit. After the debt settlement process is over, the debtor according to Article 215 - 221 Indonesian Law Number 37 Year 2004 (“Indonesia Insolvency Law”) may request for financial rehabilitation. However, towards debtors whose form of legal entity is a limited liability company (“LLC”) it is regulated in Article 142 paragraph (1) letter e Indonesian Law Number 40 Year 2007 (“Indonesia LLC Law”) for such debtors to be dissolved after being condemned insolvent. These two variations of regulation allows room for conflict especially towards an LLC that is both capable and willing to continue their business after the removal of the insolvency status but is hindered by the Indonesia LLC Law. Therefore, this research is conducted in order to analyze the legal consequences of an LLC that–after being released from insolvent status–wishes to continue its business and has sufficient capability of doing so, based on both the Indonesia Insolvency Law and the Indonesia LLC Law. This research is normative research that uses statute approach and conceptual approach. The result of this research is that the dissolution regulation may be ruled out if the LLC has the ability to continue its business post-insolvency, under the condition that the LLC must plead for rehabilitation, having a written proof of payment satisfaction from the creditors.
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Andriyanto Adhi Nugroho, Guna Gerhat Sinaga, Muhammad Fikri, Azareel Sulistiyanto Jusuf, Natasya Fhadyah Azzahra und Adira Mutiara Jasmine. „Urgensi Penerapan Tes Insolvensi Atas Perusahaan Yang Akan Diputus Pailit“. Deposisi: Jurnal Publikasi Ilmu Hukum 1, Nr. 4 (22.11.2023): 231–46. http://dx.doi.org/10.59581/deposisi.v1i4.1810.
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In the law embodied in Law Number 37 of 2004 concerning Bankruptcy and Suspension of Debt Payment Obligations, there isn't a requirement stipulating that a debtor must be declared unable (insolvent) to pay their debts through an insolvency test as a condition to determine their bankruptcy status or not. Instead, the debtor's bankruptcy status is established by proving that the debtor has a minimum of 2 (two) creditors, has failed to pay at least 1 (one) due and collectible debt. The absence of insolvency testing as a bankruptcy criterion in Indonesia could lead to companies that are actually capable of fulfilling their obligations being considered bankrupt because they meet the bankruptcy requirements in Law Number 37 of 2004 concerning Bankruptcy and Suspension of Debt Payment Obligations regulates the requirements for bankruptcy. This has the potential for significant impact, even reducing the confidence of foreign investors to invest in Indonesia. This research employs a normative legal approach. The data source utilized in this study comprises secondary data obtained through the analysis of existing literature or documents. The results of insolvency testing, determining whether a company is categorized as insolvent or not, provide an opportunity for solvent debtors to prove that they have sufficient assets to settle debts to multiple creditors. This gives debtors the chance to rebuild their businesses. Therefore, the implementation of insolvency test in a company plays a role in saving solvent debtors from bankruptcy petitions filed by creditors.
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Coumas, Michael. „Taking Directors Seriously: A Silver Bullet for Triggering the Creditors’ Interest Duty—Part I“. Business Law Review 42, Issue 3 (01.06.2021): 121–27. http://dx.doi.org/10.54648/bula2021017.
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Directors of solvent companies owe a fiduciary duty to shareholders qua the company. If a company becomes technically insolvent, the duty switches to the company’s creditors. This is uncontroversial. However, the duty is also said to switch some point before, i.e., in the ‘vicinity of insolvency’. Therefore, directors must be able to make decisions which do not prejudice shareholders, in a way that is free from exposure to claims by creditors. This uncertainty stems from the case law, where the rules of company law have been confused with the policies underlying insolvency law. The two bodies should be considered separately despite their interrelationship in practice. Doing so reveals the proper and fair function of the duty. Its application should be limited to cases of actual insolvency only. While exceptions may be made for cases of irresponsible or negligent risk-taking, this should be the exception – not the rule. This essay is the first of two parts, and examines the emergence of the duty and possible justifications. company law, insolvency law, directors’ duties, fiduciary duties, agency costs
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Coumas, Michael. „Taking Directors Seriously: A Silver Bullet for Triggering the Creditors’ Interest Duty—Part II“. Business Law Review 42, Issue 4 (01.08.2021): 175–81. http://dx.doi.org/10.54648/bula2021025.
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Directors of solvent companies owe a fiduciary duty to shareholders qua the company. If a company becomes technically insolvent, the duty switches to the company’s creditors. This is uncontroversial. However, the duty is also said to switch some point before, i.e., in the ‘vicinity of insolvency’. Therefore, directors must be able to make decisions which do not prejudice shareholders, in a way that is free from exposure to claims by creditors. This uncertainty stems from the case law, where the rules of company law have been confused with the policies underlying insolvency law. The two bodies should be considered separately despite their interrelationship in practice. Doing so reveals the proper and fair function of the duty. Its application should be limited to cases of technical insolvency only. While special cases may be made for irresponsible or negligent risktaking by directors, this should be the exception – not the rule. This article is the second of two parts examining this issue, focussing on the current trigger for the duty and exploring possible solutions. Company law, insolvency law, directors’ duties, fiduciary duties, agency costs
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Somoza, Antonio. „The influence of the vulnerability of sectors on their survival and probability of insolvency: the case of small and medium entities in Spain“. Revista de Métodos Cuantitativos para la Economía y la Empresa 32 (01.12.2021): 148–74. http://dx.doi.org/10.46661/revmetodoscuanteconempresa.4339.
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This paper looks at a sample of small and medium entities in Spain and analyzes the effect of the vulnerability of sectors to insolvency on their survival and the probability that they will go bankrupt. We collected data from solvent and insolvent firms in Spain over the period 2012-2016, and grouped them according to the percentage of insolvencies by sector (highest, lowest, and a reference group). The results show that no differences in the endurance of the firms emerge among the groups, while some variables appear to be relevant when the logit analysis is applied. Survival depends on liquidity and size in all industries, but profitability and turnover are also essential for the group with the highest levels of insolvency. The probability of bankruptcy is mainly explained by turnover and short-term solvency. Size and turnover have negative effects on bankruptcy. Age is also a common factor, but with a different interpretation for each technique. The main contribution of this paper is the analysis of insolvency in the two dimensions of survival and probability according to the sectorial insolvency rate.
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Marumoagae, Motseotsile Clement. „What amounts to "dispositions without value" in the context of section 26 of the Insolvency Act 24 of 1936?“ De Jure 55, Nr. 1 (14.08.2023): 174–90. http://dx.doi.org/10.17159/2225-7160/2023/v56a13.
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Section 26 of the Insolvency Act 24 of 1936 aims to prevent natural and juristic persons from giving away their assets without receiving any value in return, in circumstances where immediately after releasing such assets they become insolvent. This paper demonstrates that it has not been easy for courts to adequately determine how value should be established for this provision not to apply. Several tests that have been established by courts are discussed with a view to demonstrate the difficulty faced by trustees and liquidators when seeking to set aside transactions in which they believe insolvent persons did not derive value. It will also be shown that the Supreme Court of Appeal crafted a new test that is way too simplistic, which may lead to prejudicial transactions that should otherwise be subjected to judicial scrutiny in terms of section 26(1) of the Insolvency Act being protected from the reach of this provision. This paper argues that there is an urgent need for legislative guidelines on what constitutes value in relation to the pre-liquidation/sequestration transactions to prevent the application of section 26(1) of the Insolvency Act.
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Khodakevich, Serhii, Maksym Shchehliuk, Oleksii Ozadovskyi und Artur Stryzhak. „Signs of recognition of a problem and insolvent bank“. Scientific notes, Nr. 32 (24.10.2023): 266–77. https://doi.org/10.33111/vz_kneu.32.23.03.24.171.177.
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One of the most critical tasks of a bank is to ensure its viability. However, not all banks demonstrate the ability to function stably under conditions of socio-economic uncertainty, such as the Covid pandemic or wars. Consequently, banks find themselves in crisis situations and/or go bankrupt. In economic literature, there has long been a debate about the identity of the concepts of a «problem bank,» «insolvent bank,» and «bankruptcy.» However, many issues remain contentious to this day. This article aims to shed light on these problematic aspects and explore solutions considering global experience. Unlike other economic activities, banking has its own specificity linked to risks that directly affect the solvency of banks and significantly complicate the formalization of problems, insolvency, and bankruptcy. Attention is drawn to the absence of clear definitions of these concepts in legislative acts. There are only criteria for categorizing a bank into one category or another, which are grouped in the study according to certain criteria. However, the question of the National Bank of Ukraine (NBU) having extended powers regarding the recognition of a bank’s problematic status for other reasons is disputed. The recognition of a bank as problematic is a banking secret, unlike insolvency. In matters of recognizing a bank as problematic and regulating insolvency, administrative powers are divided between the NBU and the Deposit Guarantee Fund (FGVFO). The study presents the algorithm of actions of FGVFO when receiving a decision from the NBU to classify a bank as problematic. The presence of financial asymmetry is identified as a cause of insolvency, where insolvency is interpreted as the inability to pay debts. However, it is noted that a more critical issue should be the disruption of the bank’s operations or a deterioration in the financial condition of the banking institution, which prevents the bank from functioning as a financial intermediary. Such a situation already poses a corresponding societal threat. The procedure for recognizing insolvency is subject to certain subjectivity. In case insolvency cannot be resolved, FGVFO takes the authority to withdraw the bank from the market. Emphasis is placed on the duality of recognizing a bank as insolvent: as a measure of influence and the actual recognition of the bank’s bankruptcy situation, with the application of liquidation procedures. World experience in addressing these issues is also discussed.
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Kozioł, Oliwia, und Julia Włodarczyk. „Wpływ upadłości przedsiębiorstw na zadowolenie z pracyi płacy u nowego pracodawcy – studium przypadku“. Studies in Risk and Sustainable Development 396 (2022): 1–9. http://dx.doi.org/10.22367/srsd.2022.396.06.
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PURPOSE: The aim of the paper is to determine the impact of insolvency of one company from Poland on job and wage satisfaction (as well as the individual perception of the situation of the employee, company and region) among a group of former employees of this insolvent company who became employed by a new employer. DESIGN/METHOD: Conducted research entailed collecting survey data from two groups of employees working at the same company: one group with the experience of company insolvency and a group of employees without such an experience. Data analysis involved the Pearson’s chi-square test of independence and Cramér’s V, as well as Shapiro-Wilk test for normality employed to compare distributions of answers in both analyzed groups. RESULTS/FINDINGS: Conducted analysis confirmed the existence of the relationship between the experience of company insolvency and job and wage satisfaction. Individuals that experienced insolvency of their former employer revealed significantly higher job and wage satisfaction than others. These individuals were also less willing to look for another job, felt appreciated at work and were more optimistic about career perspectives after reemployment. Besides, significant differences between distributions of answers in both analysed groups were observed: for the group of employees with the experience of company insolvency the null hypothesis of normal distribution of answers was rejected for the majority of variables, while in the other group only for one variable. ORIGINALITY/VALUE: It is the first study that analyses the impact of company insolvency on individual perceptions and job and wage satisfaction within a group of former employees that were later employed (as a group) by a new employer. KEYWORDS: insolvency, bankruptcy, job satisfaction, wage satisfaction. JEL: J28, J63, J65
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Torralba Mendiola, Elisa. „Las insolvencias transfronterizas en la Unión Europea: perspectivas jurisprudenciales y retos = Cross-border insolvencies in the European Union: recent case law and new challenges“. CUADERNOS DE DERECHO TRANSNACIONAL 11, Nr. 2 (01.10.2019): 360. http://dx.doi.org/10.20318/cdt.2019.4963.
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Resumen: El Reglamento 848/2015, sobre procedimientos de insolvencia regula los problemas de Derecho internacional privado que suscitan las situaciones concursales en el ámbito de la Unión Europea. En este trabajo se analiza la más reciente jurisprudencia del TJUE en materia concursal y los retos que se plantean a día de hoy en el tratamiento de la materia, que ponen de relieve la necesidad de adaptar la aplicación de los textos legales a situaciones políticas –y jurídicas– cambiantes.Palabras clave: insolvencia, cooperación, competencia.Abstract: Regulation 2015/848 on Insolvency Proceedings rules the private international law matters regarding insolvencies within the European Union. This paper analyses the most recent case law of the EUCJ and the challenges actually existing in this area, that evidence the need to adapt the application of the rules to the changing legal and political context.Keywords: insolvency, cooperation, jurisdiction.
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Kapoor, Arshit, und Kartikey Sanjeev Bhalotia. „Enforcement of Arbitral Awards in the New Insolvency Regime: A Need for Harmonizing the Hostility“. Arbitration: The International Journal of Arbitration, Mediation and Dispute Management 87, Issue 4 (01.11.2021): 507–28. http://dx.doi.org/10.54648/amdm2021035.
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Insolvency and Arbitration law are premised on very contradictory legal principles. On one hand, the insolvency law aims for a centralized approach towards determination and enforcement of liabilities among parties. On the other hand, arbitration law provides for a mechanism where contracting parties choose their own forum to resolve disputes in a completely decentralized manner. This apparent conflict has often led to the raising of several important legal propositions in cases when these incompatible laws collide. This article analyses the hostility between the Arbitration and Conciliation Act 1996 and the Insolvency and Bankruptcy Code 2016 in terms of its effect on the continuation of arbitration proceedings and the consequent enforcement of arbitral awards against the insolvent party. The paper deals with this legal conundrum under both domestic and foreign seated arbitration proceedings. This discussion assumes special importance due to the lack of literature and precedents on the proposition.
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Mokal, Rizwaan Jameel. „PRIORITY AS PATHOLOGY: THE PARI PASSU MYTH“. Cambridge Law Journal 60, Nr. 3 (26.11.2001): 581–621. http://dx.doi.org/10.1017/s0008197301001246.
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This paper argues that the pari passu principle of insolvency law does not fulfil any of the functions often attributed to it. It does not constitute an accurate description of how the assets of insolvent companies are in fact distributed. It has no role to play in ensuring an orderly winding up of such companies. Nor does it underlie, explain, or justify distinctive features of the formal insolvency regime, notably, its collectivity. The case-law said to support the pari passu principle serves actually to undermine its importance. And the principle has nothing to do with fairness in liquidation. The substantive argument in the paper concludes by examining the actual role of the principle. The arguments made here have important implications for almost every debate about insolvency law, from the status of secured and preferential creditors to the appropriate role of corporate “rescue” procedures.
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Zabkowski, Tomasz S. „RFM approach for telecom insolvency modeling“. Kybernetes 45, Nr. 5 (03.05.2016): 815–27. http://dx.doi.org/10.1108/k-04-2015-0113.
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Purpose – The purpose of this paper is to present application of recency, frequency and monetary value (RFM) approach to predict customer insolvency using telecommunication data corresponding to RFM of late payments. The study tackles a serious problem that telecommunication companies often face and shows the ways to deal with it. Design/methodology/approach – Based on a real telecom customer data, RFM approach was tested against decision trees and logistic regression models. Proposed models were evaluated with lift measure, area under the receiver operating characteristic and the ability to detect significant amount of money owed by insolvent customers. Findings – The main findings from the research are twofold: RFM approach offers a viable alternative for customer insolvency classification. The proposed models perform well and all of them can capture significant amount of money owed by insolvent customers what is of high importance for the revenue assurance. Originality/value – In comparison to previous studies proposed research presents novelty in the following areas. First, it deals with RFM applied to insolvency data (previous studies dealt with direct marketing data). Second, with these three variables it is possible to act as an early warning system for predicting the risk level and probable anomalies as quickly as it is possible (data retrieval and computational time is reduced). Third, RFM approach was tested against decision trees and logistic regression and the quality of the models was also assessed three months after the estimation.
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Budko, Elena V. „Bankruptcy as a Way of Self-Defense of the Risk Subject“. Siberian Journal of Philosophy 18, Nr. 1 (2020): 87–98. http://dx.doi.org/10.25205/2541-7517-2020-18-1-87-98.
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The phenomenon of insolvency (bankruptcy) is considered as a mode of existence of the subject of risk in the projection of his socio-economic behavior (fear, anxiety, loneliness) and features of personal constitution (evasion of responsibility, restriction of freedom, being in debt, deception). The article substantiates the fact that the institution of insolvency (bankruptcy) of citizens appears as a means of resolving the conflict of interests between the debtor and its creditors, as a mechanism for protecting the socio-economic rights of an insolvent risk subject and as a way to “exit” from an unstable financial crisis situation.
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Mabe, Zingapi. „Setting aside Transactions from Pyramid Schemes as Impeachable Dispositions under South African Insolvency Legislation“. Potchefstroom Electronic Law Journal/Potchefstroomse Elektroniese Regsblad 19 (21.10.2016): 1. http://dx.doi.org/10.17159/1727-3781/2016/v19i0a1236.
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South African courts have experienced a rise in the number of cases involving schemes that promise a return on investment with interest rates which are considerably above the maximum amount allowed by law, or schemes which promise compensation from the active recruitment of participants. These schemes, which are often referred to as pyramid or Ponzi schemes, are unsustainable operations and give rise to problems in the law of insolvency. Investors in these schemes are often left empty-handed upon the scheme’s eventual collapse and insolvency. Investors who received pay-outs from the scheme find themselves in the defence against the trustee’s claims for the return of the pay-outs to the insolvent estate. As the schemes are illegal and the pay-outs are often in terms of void agreements, the question arises whether they can be returned to the insolvent estate. A similar situation arose in Griffiths v Janse van Rensburg 2015 ZASCA 158 (26 October 2015). The point of contention in this case was whether the illegality of the business of the scheme was a relevant consideration in determining whether the pay-outs were made in the ordinary course of business of the scheme.This paper discusses pyramid schemes in the context of impeachable dispositions in terms of the Insolvency Act 24 of 1936.
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Mujkić, Elvis, und Jelena Poljašević. „Prediction of insolvency using logistic regression“. Ekonomski vjesnik 36, Nr. 1 (2023): 127–41. http://dx.doi.org/10.51680/ev.36.1.10.
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Purpose: In this paper, the authors try to develop a model for predicting the insolvency of trading companies from the Republic of Srpska. The research seeks to determine the statistically most significant financial indicator in predicting the insolvency of trading companies in the Republic of Srpska. Methodology: The research data sample in this paper consists of yearly data from 2017 to 2020 for two hundred trading companies from the Republic of Srpska. Binary logistic regression was used to develop the model. Results: As a result of the research, a model was created that successfully classifies 82.9% of solvent and 80% of insolvent companies, with a general efficiency rate of 81.4%. Conclusion: Based on the empirical research results, we can conclude that the hypothesis has been confirmed that the LR model can be formed on the basis of selected financial indicators as a tool for predicting the insolvency of trading companies in the Republic of Srpska.
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Bilić, Antun, und Marko Bratković. „Pobojnost namjernog oštećenja vjerovnika stečajnog dužnika“. Zbornik Pravnog fakulteta u Zagrebu 71, Nr. 3-4 (15.11.2021): 443–76. http://dx.doi.org/10.3935/zpfz.71.34.05.
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It is clear from the case law of Croatian courts that intentional disadvantaging the creditors (regulated in Article 202 of the Insolvency Act) is the most commonly used ground for contesting the legal transactions of an insolvent debtor. On this ground, all legal transactions undertaken in the suspect period of as long as ten years before the submission of the application for opening (pre-)insolvency proceedings until the opening insolvency proceedings can be contested. The authorized contester, however, in litigation has a tall order of proving not only that the debtor took action with the intent to disadvantage its creditors but also that the opponent of the contestation was aware of that intent. The debtor’s intent to disadvantage its creditors and the awareness of the opponent of the contestation are both determined on the basis of objective indications that are at the heart of the analysis of this paper. Incongruent settlement, the unequal value of consideration, unusual contractual clauses, the proximity of the insolvency debtor and the opponent of the contestation, and the debtor’s (threatening) inability to pay his debts are most often recognized in case law as indications of intentional disadvantaging the creditors of an insolvent debtor. In addition to certain objections to the normative regulation of the institute itself, especially regarding the drafting of presumptions that make it easier to prove the contester’s awareness of the debtor’s intention to disadvantage its creditors, the paper presents a critical assessment of case law that could facilitate its harmonization and serve as a guide to authorized contesters as to whether it is appropriate to engage in contestation or not.