Why it matters?
Why does a good insolvency regime matter?
Keeping viable businesses operating is among the most important goals of insolvency systems. A good insolvency regime should inhibit the premature liquidation of sustainable businesses. It should also discourage lenders from issuing high-risk loans, and managers and shareholders from taking imprudent loans and making other reckless financial decisions.1 A firm suffering from poor management choices or a temporary economic downturn can still be turned around. When this happens, all stakeholders benefit. Creditors can recover a larger part of their investment; more employees keep their jobs and the network of suppliers and customers is preserved.
Studies show that effective reforms of creditor rights are associated with lower costs of credit, increased access to credit, improved creditor recovery and strengthened job preservation.2 If at the end of insolvency proceedings creditors can recover most of their investments, they can continue reinvesting in firms and improving companies’ access to credit. Similarly, if a bankruptcy regime respects the absolute priority of claims, secured creditors can continue lending and confidence in the bankruptcy system is maintained.3
Economy-specific research has shown that insolvency reforms that encourage debt restructuring and reorganization reduce both failure rates among small and medium-size enterprises and the liquidation of profitable businesses. After Belgium introduced a new bankruptcy law in 1997 that encouraged corporate rehabilitation rather than liquidation, bankruptcies among small and medium-size enterprises fell by 8.4%.4 Similar results have been observed in Italy and Colombia. In Italy, evidence suggests that the introduction of a reorganization procedure increased the interest rates on loan financing and that the reform that accelerated the liquidation procedure not only decreased firms' cost of finance but also relaxed credit constraints.5 In Colombia, bankruptcy reform made reorganization an attractive option for distressed but viable firms by reducing its costs, although this mainly benefited larger firms. About 40% of firms filing for reorganization under the old bankruptcy law underwent liquidation, while only about 26% did so under the new law.6 Research has also shown that bankruptcy reform can aid in the quick recovery of an economy during a recession, as in Chile during the early 1980s and Colombia in 1999.7
Even when bankruptcy laws are similar across economies, the use of bankruptcy procedures can vary because of differences in the efficiency of debt enforcement. If courts cannot be used effectively in a case of default, creditors and debtors are likely to engage in informal negotiations outside of court. And, in economies with weak judiciary systems, borrowers are more likely to exhibit risky financial behavior, which could lead to more defaults and higher levels of financial distress. In Brazil, differences in court enforcement of the same bankruptcy law reform affected the impact of financial reform on firm access to finance, investment and size.8
1 Djankov, Simeon, Oliver Hart, Caralee McLiesh and Andrei Shleifer. 2008. “Debt Enforcement around the World.” Journal of Political Economy 116 (6): 1105–49.
2 Neira, Julian. 2017. “Bankruptcy and Cross-Country Differences in Productivity.” Journal of Economic Behavior and Organization (2017). http://dx.doi.org/10.1016/j.jebo.2017.07.011.; Claessens, Stijn, and Leora Klapper. 2003. “Bankruptcy around the World: Explanations of Its Relative Use.” Policy Research Working Paper 2865, World Bank, Washington, DC.
3 Armour, John, Antonia Menezes, Mahesh Uttamchandani and Kristen Van Zweiten. “How Creditor Rights Affect Debt Finance.” in F. Dahan, ed. 2015. Research Handbook on Secured Financing in Commercial Transactions. Elgar Publishing.; Djankov, Simeon. 2009. “Bankruptcy Regimes during Financial Distress.” World Bank, Washington, DC.
4 Dewaelheyns, Nico, and Cynthia Van Hulle. 2006. “Legal Reform and Aggregate Small and Micro Business Bankruptcy Rates: Evidence from the 1997 Belgian Bankruptcy Code.” Small Business Economics 31 (4): 409–24.
5 Rodano, Giacomo, Nicolas Andre Benigno Serrano-Velarde and Emanuele Tarantino. 2011. “The Causal Effect of Bankruptcy Law on the Cost of Finance.” Available at SSRN: https://ssrn.com/abstract=1967485 or http://dx.doi.org/10.2139/ssrn.1967485.
6Giné, Xavier, and Inessa Love. 2006. “Do Reorganization Costs Matter for Efficiency? Evidence from a Bankruptcy Reform in Colombia.” Policy Research Working Paper 3970, World Bank, Washington, DC.
7 Bergoeing, Raphael, Patrick J. Kehoe, Timothy J. Kehoe and Raimundo Soto. "A Decade Lost and Found: Mexico, and Chile in the 1980s.” In Timothy J. Kehoe and Edward C. Prescott, editors. 2006. Great Depressions of the Twentieth Century.
8 Ponticelli, Jacopo, and Leonardo S. Alencar. 2016. “Court Enforcement, Bank Loans and Firm Investment: Evidence from a Bankruptcy Reform in Brazil.” Working Paper 425, Banco Central do Brasil.