Jocelyn Martel

Should We Abolish Chapter 11? Evidence from Canada

Chapter 11 has been severely criticized over the last decade. Some American jurists arguing in favor of revising Chapter 11 have raised the possibility that the Canadian reorganization system might be a good alternative. This article examines data on firms undergoing reorganization under the Canadian bankruptcy system and argues that there are fruitful lessons to be learned from the Canadian experience with court‐supervised reorganization. Canadian reorganization plans have very high rates of acceptance, confirmation, and consummation. Firms in Canada are almost eight times more likely to survive reorganization than are firms in Chapter 11. Further, small firms are just as likely as large firms are to emerge from reorganization in Canada, contrary to experience in the United States. The data also show that Canadian reorganization procedure offers a very rapid solution to financial distress and that creditors gain, in expected value terms, from reorganization over liquidation. We use our analysis of the relative performance of the two systems to suggest some avenues for reform of Chapter 11.

Will the Bankruptcy Reform Work? An Empirical Analysis of Financial Reorganization in Canada

The new Bankruptcy Act has two clear aims: (i) to increase the number of firms opting for reorganization over liquidation, and (ii) to increase protection for wage earners at bankrupt firms. The paper examines a unique micro data set of 338 commercial financial reorganization proposals filed in Canada during the period 1978-87 to determine whether these aims are likely to be met. Estimates from a logit model of reorganization plan acceptance indicate that the new Act will result in a roughly 7 percentage point increase in the number of reorganization plans that creditors accept. Everything else being equal, these changes are estimated to save about 120 jobs per year in Canada. Thus, while the new Act will increase the rate at which creditors accept reorganization plans, the actual impact of a higher acceptance rate will be quite small.

The Choice between Informal and Formal Restructuring: The Case of French Banks Facing Distressed SMEs

This empirical paper investigates the paths leading to the resolution of financial distress for a sample of small and medium-sized French firms in default, focusing in particular on their decisions between bankruptcy and informal (out-of-court) renegotiations. The procedure is depicted as a sequential game in which stakeholders first decide whether to engage in an informal renegotiation. Second, conditional on opting for renegotiation, the debtor and its creditors may succeed or fail in reaching an agreement to restructure the firm’s capital structure. We test different hypotheses that capture (i) coordination and bargaining power issues, (ii) informational problems, (iii) firm characteristics, and (iv) loan characteristics. The empirical implementation is based on sequential LOGIT regressions. First, we find that the likelihood of informal renegotiations increases with loan size and the proportion of long-term debt. These two results support the argument that size matters when deciding whether to opt for informal renegotiation. Second, the probability of a successful renegotiation decreases when (i) the bank in charge of handling the process is the debtor’s “main” creditor and when (ii) the firm is badly rated and its management is considered faulty. Third, the estimations show that collateral plays a significant role in the first stage of the renegotiation process. However, it does not impact the likelihood of success in reaching a renegotiated agreement. Finally, some banks are clearly better than others at leading successful renegotiation processes.

Bankruptcy Law and the Canadian Experience: An Economic Appraisal

The present paper offers an overview of the Canadian bankruptcy system and looks at the different roles a bankruptcy law should play--that is avoiding a common property problem, respecting pre-bankruptcy entitlements, and increasing the flow of information between all parties in order to eliminate inefficient firms. Statistical evidence on the use of liquidation and reorganization procedures and on the characteristics of firms using each procedure are supplied. Finally, the author looks at the rationale and the possible impact of some proposed amendments to the Canadian Bankruptcy Act.

Tax Claims, Government Priority, Absolute Priority and the Resolution of Financial Distress

We present a model of an insolvent firm that may take advantage of a ‘soft-touch’ government creditor in order to buy time before filing for reorganization, behaviour we refer to as ‘claims substitution.’ Parameters in the model reflect the enforcement of absolute priority and government priority in bankruptcy. We show that deviations from absolute priority reduce the incentive for claims substitution. We also show that strict government priority is economically efficient. We discuss the implications of our findings for bankruptcy law reform, especially with respect to the priority of tax claims in bankruptcy and the enforcement of absolute priority.

Insolvency Risks and the Role of Insolvency Law

Insolvency law plays a prominent role in the area of commercial risk and risk management. All commercial contracts must be drafted against the background of insolvency law. And all lenders, at the time of evaluating and extending credit, must consider the bankruptcy implications of their loan decisions. The efficacy of a lender’s decisions is tested only when a borrower is in financial distress and bankruptcy is one of the likely outcomes. So study of insolvency laws and their operation must accompany studies of commercial risk and risk management.