Towards a Principled Approach for Bailouts of COVID-Distressed Critical/Systemic Firms

41 Pages Posted: 3 Mar 2021 Last revised: 23 Mar 2021

See all articles by Horst Eidenmueller

Horst Eidenmueller

University of Oxford - Faculty of Law; European Corporate Governance Institute (ECGI)

Javier Paz Valbuena

University of Oxford, Faculty of Law

Date Written: March 2, 2021

Abstract

In this essay, we propose a principled approach for government bailouts of critical/systemic firms who find themselves in COVID-19-induced financial distress. We also demonstrate why bankruptcy is the wrong tool to address the problems of these types of firms.

The current pandemic threatens lives and livelihoods across the world. A key difference compared to previous market shocks is that lockdowns and related measures have, in certain instances, made it impossible for businesses to conduct their operations. This has resulted in a very specific type of distress, one that bankruptcy is not in the best position to address effectively. If there are no revenues, the design of bankruptcy laws makes them an inadequate tool – and the sheer volume of companies going through the process may put severe stress on the system. The difficulties that the vast majority of companies are encountering may be better solved using different tools: bailouts, bail-ins or a combination thereof, deployed by the government in wide-ranging statutory schemes.

However, these schemes may not adequately address the issues of all companies; and the preservation of some of them – those that we refer to as critical/systemic – may be of such significant value to society that more intense assistance from the government is justified. We engage with the characteristics of firms that should be considered critical/systemic and the principles that should guide ad hoc rescues of those companies by the government. Firms are critical/systemic if their failure imposes significant negative externalities on the economy (or, conversely, their preservation generates significant positive externalities) or if they provide the public with an “infrastructure” not otherwise provided by the private sector. If firms are critical/systemic, the government should have the ability to bail them out, going beyond applicable statutory schemes and ensuring that the relevant externalities are considered when deciding whether to keep these companies as going concerns. Bankruptcy is a private process. It is not designed to vindicate such public considerations.

Government bailouts, however, should be governed by principles, as any government intervention in the economy, and its associated efficiency and distributional effects must be considered with care. The guiding principles that we propose and elaborate on are (i) proportionality, (ii) efficiency, (iii) equity and (iv) transparency. The application of these principles should ensure that, if the government takes ownership of a private firm through an ad hoc bailout, this is a tool of last resort, and not more than temporary – and that the pre-distress investors properly contribute to the necessary measures.

Keywords: COVID-19, Bankruptcy, Bailout, Bail-in, Critical/Systemic Firms, Public Policy, Principled Regulation

JEL Classification: K2, E6, G3

Suggested Citation

Eidenmueller, Horst G. M. and Paz Valbuena, Javier, Towards a Principled Approach for Bailouts of COVID-Distressed Critical/Systemic Firms (March 2, 2021). European Corporate Governance Institute - Law Working Paper No. 571/2021, Available at SSRN: https://ssrn.com/abstract=3795942 or http://dx.doi.org/10.2139/ssrn.3795942

Horst G. M. Eidenmueller (Contact Author)

University of Oxford - Faculty of Law ( email )

St Cross Building
St Cross Road
Oxford, OX1 3UL
United Kingdom

European Corporate Governance Institute (ECGI) ( email )

c/o the Royal Academies of Belgium
Rue Ducale 1 Hertogsstraat
1000 Brussels
Belgium

Javier Paz Valbuena

University of Oxford, Faculty of Law ( email )

Oxford
United Kingdom

HOME PAGE: http://https://www.law.ox.ac.uk/people/javier-paz-valbuena

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