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Not Just Efficiency: Insolvency Law in the EU and Its Political Dimension

Published online by Cambridge University Press:  04 July 2013

Federico M. Mucciarelli*
Affiliation:
University of London, SOAS, and University of Modena and Reggio Emilia, Department of Economics and CEFIN. An earlier version of this paper was presented at the Global Fellows Forum, NYU Law School, 3 February 2011. I owe special thanks to Marcel Kahan for many inspiring comments and suggestions regarding previous versions of the paper. I would like to thank Carlos J. Closa, Luca Enriques, Troy McKenzie, Christoph Paulus, Arthur Pinto, Maxi Charlotte Scherer, Ingo Venzke, Marc-Philippe Weller and Tal Zarsky for their helpful comments on the version of this paper presented at NYU Law School, and all participants in the Global Fellows Forum for their contribution to the discussion. All errors and opinions are the author's.
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Abstract

Certain insolvency law rules, like creditors' priorities and set-off rights, have a distributive impact on creditors. Distributional rules reflect the hierarchies of values and interests in each jurisdiction and, as a result, have high political relevance and pose an obstacle to reforming the EU Insolvency Regulation. This paper will show the difficulty of reform by addressing two alternative options to regulate cross-border insolvencies in the European Union. The first one is the ‘choice model’, under which companies can select the insolvency law they prefer. Although such a model would allow distressed firms to select the most efficient insolvency law, it would also displace Member States’ power to protect local constituencies. The choice model therefore produces negative externalities and raises legitimacy concerns. The opposite solution is full harmonisation of insolvency law at EU level, including distributional rules. Full harmonisation would have the advantage of internalising all externalities produced by cross-border insolvencies. However, the EU legislative process, which is still based on negotiations between states, is not apt to decide on distributive insolvency rules; additionally, if harmonisation includes such rules, it will indirectly modify national social security strategies and equilibria. This debate shows that the choice regarding power allocation over bankruptcies in the EU depends on the progress of European integration and is mainly a matter of political legitimacy, not only of efficiency.

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Articles
Copyright
Copyright © T.M.C. Asser Press and the Authors 2013 

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