Rekonstruktion af insolvente virksomheder: En retsøkonomisk analyse af, i hvilket omfang ændringen af konkursloven, for så vidt angår rekonstruktion af insolvente virksomheder, kan karakteriseres som en Kaldor-Hicks efficient tilstand

Dorthe Møller Jochimsen & Sophie Bech Andersen

Student thesis: Master thesis

Abstract

The topic of this paper is reconstruction of insolvent companies, and does more precisely concern a change in the bankruptcy law, with the purpose of creating a better framework, to ensure that viable companies can continue their operations. The current rules concerning reconstruction, have been criticized for not been able to support enough the possibility for insolvent companies to continue their operations, and the purpose of the change in the bankruptcy law is thus to reduce the number of petitions in bankruptcy and make continuation of insolvent companies easier. When focusing on the change in the reconstruction rules, the primary purpose of this paper has been to reveal whether or not the change in the bankruptcy law, constitutes a Kaldor-Hicks efficient provision. To clarify the main thesis of the paper, it has been necessary in the legal part of the paper, to infer the difference in the reconstruction rules before and after the change in the bankruptcy law, and how they differ from each other. The legal areas which are dealt with are suspension of payments, composition with creditors, and mergers and acquisitions. Furthermore a comparative analysis between Danish and Swedish insolvency law is made and among this the concept floating charge. The purpose of this analysis is to conduct whether the change in the bankruptcy law should have been inspired by the Swedish reconstruction law, and furthermore, if it should have taken the concept floating charge more into account. Finally a comparative analysis between Danish and American insolvency rules was made, to conduct whether the chance in the bankruptcy law should have been inspired by a pro debtor approach to the law. In the economic and integrated part of the paper, the analysis made in the legal part, was used to make cost/benefit analysis for the different legal areas. These costs and benefits were used to deduct payoffs to be used in setting up extensive-form games. The difference in the expected utility for the two players in the game, creditor and debtor, was used in the conclusion of whether or not the change in the bankruptcy law, all together constitutes a Kaldor-Hicks efficient provision. In this paper, it is concluded, that the change in the Danish bankruptcy law constitutes a Kaldor-Hicks efficient provision, and a consequence of the fact that the rules of suspension of payments, are no longer a part of the law, and that there has been a significant improvement of the rules of composition with the creditors.

EducationsMSc in Commercial Law, (Graduate Programme) Final Thesis
LanguageDanish
Publication date2011
Number of pages146