Corporate Restructuring, the Evolution of Corporate Assets and the Public Interest
INSOL International Insolvency Review, 2013
26 Pages Posted: 30 Mar 2013
Date Written: January 1, 2013
In Canada, the public interest has always been a significant consideration in the restructuring of insolvent corporations. And with the introduction of new proceedings under Canada’s restructuring statute, liquidating proceedings, an important consideration is whether these proceedings are in the public interest. Unfortunately, although the Supreme Court in Century Services traced the history of the CCAA and spoke of its remedial purpose, it did not discuss liquidating CCAAs or how they can be reconciled with the public interest purpose of the legislation, which leaves unanswered questions about the seemingly contradictory purpose of the CCAA and the nature of these liquidating plans of arrangement, and their impact on the public interest.
Given the importance of achieving a public interest goal in CCAA proceedings, it is important to determine how to conceptualize liquidating CCAA proceedings as working towards that goal. Eight decades ago, when the CCAA was enacted, the types of proceedings taking place under the legislation were different because the asset bases of corporations were different. Reconciling these changing proceedings with the public interest goal of the legislation is necessary if proceedings are going to continue evolving under the CCAA.
The argument in this paper took a broad, value-based approach. I maintain that so long as the ‘public interest’ can be defined to include the continuance of value in the economy, in any form, then any proceedings, regardless of form or outcome, that add value or serves to maintain the value already there, would fulfill that purpose of the CCAA. Put another way, so long as the proceeding causes value to be retained that is more than the sum of its parts, I argue that it is in the public interest. Conversely, if value is lost in liquidation because certain assets cannot be valued and sold, then these proceedings (or any proceedings) are not achieving the goal of the legislation. But the answer is not to cease taking these proceedings; it is to find a way to acknowledge and account for the value of intangible assets. Once that happens, a more accurate determination can be made as to how to proceed in any restructuring.
I drew three conclusions in this paper. First, the public interest in the context of the CCAA should be considered in the context of value maximization rather than the welfare of the different constituencies. This should take into account the changing nature of corporate assets, and the public interest in this paper refers to the interests of directly and indirectly affected stakeholders of the corporation. Second, corporations have changed since the enactment of the CCAA. Their assets have evolved to become less firm or industry specific, and they have also become less tangible. Third, the consideration of value added in a restructuring of a corporation containing intangible assets is difficult because these assets have value not easily quantified. In addition, although tangible assets have evolved to become less firm specific, intangibles remain firm specific, and unless they can be transferred to another company as a whole, much of their value is lost. Once those premises are accepted, then a liquidation of a modern corporation leads to a potential loss of value, which means the public interest, one of the underlying considerations of the CCAA, may well not be served unless a way can be devised to value these evolving intangible assets.
Keywords: restructuring, public interest, CCAA, value, Century Services, liquidating CCAA, assets
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