Corporate Restructuring under Relative and Absolute Priority Default Rules: A Comparative Assessment

50 Pages Posted: 9 Dec 2019 Last revised: 23 Feb 2020

See all articles by Jonathan Seymour

Jonathan Seymour

Duke University School of Law

Steven L. Schwarcz

Duke University School of Law

Date Written: December 4, 2019

Abstract

The European Union recently adopted a Restructuring Directive intended to facilitate the reorganization of insolvent and other financially troubled firms. Although the central goal of the Directive parallels that of Chapter 11 of U.S. bankruptcy law — to protect and maximize the value of financially distressed but economically viable enterprises by consensually reorganizing their capital structure — the Directive introduces an innovative but controversial option: that EU Member States can decree that reorganization negotiations should be subject to a relative priority default rule, in contrast to the type of absolute priority default rule used by Chapter 11. EU officials argue that relative priority is not only fair but also provides the flexibility that is needed pragmatically to restructure a troubled firm. This article explains why relative priority inadvertently can undermine the incentives needed to achieve a successful restructuring, and why absolute priority provides a more effective default rule for reaching a negotiated consensus. Additionally, the article illustrates why the Directive’s standard not only may be unfair to creditors but also might discourage debt investments in the European Union.

Suggested Citation

Seymour, Jonathan and Schwarcz, Steven L., Corporate Restructuring under Relative and Absolute Priority Default Rules: A Comparative Assessment (December 4, 2019). Duke Law School Public Law & Legal Theory Series No. 2019-84; University of Illinois Law Review, Forthcoming, Vol. 2021, No. 1. Available at SSRN: https://ssrn.com/abstract=3498611 or http://dx.doi.org/10.2139/ssrn.3498611

Jonathan Seymour (Contact Author)

Duke University School of Law ( email )

210 Science Drive
Box 90362
Durham, NC 27708
United States

Steven L. Schwarcz

Duke University School of Law ( email )

210 Science Drive
Box 90362
Durham, NC 27708
United States
919-613-7060 (Phone)
919-613-7231 (Fax)

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