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Creditor Rights and the Public Interest Restructuring Insolvent Corporations 1st Edition by Janis Sarra ISBN 1442673591 9781442673595

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Author(s): Janis Sarra
ISBN(s): 9781442673595, 1442673591
Edition: 1
File Details: PDF, 20.25 MB
Year: 2003
Language: english
SKU: EB-51586038 Category: Tag:

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ISBN 10: 1442673591 
ISBN 13: 9781442673595
Author: Janis Sarra

Creditor Rights and the Public Interest supports the greater representation of non-traditional creditors in the process of insolvency restructuring in Canada, concentrating particularly on restructuring under the federal Companies’ Creditors’ Arrangement Act (CCAA). Arguing in favour of the representation of such non-traditional creditors as workers, consumers, trade suppliers, and local governments, Janis Sarra describes the existing process of addressing their interests, analyzes four case studies that focus on non-creditor groups, and compares the Canadian approach to that of several other countries, such as Germany, France, and the United States.

Sarra draws on a comprehensive body of academic literature that covers a broad range of issues—insolvency theory, corporate governance theory, legislative history, and bankruptcy and insolvency practice. She further surveys the relevant legislation and supplements her analysis with insights drawn from extensive primary research of court records and personal interviews with lawyers, judges, and government officials.

Creditor Rights and the Public Interest ultimately illustrates the way in which the concept of the public interest can be utilized to foreground the concerns of non-traditional stakeholders. Sarra provides a coherent account of the justification for recognizing these creditors by situating insolvency law in a legal regime that realizes a duty to maximize all of the interests and investments at stake in the corporation. In an academic field where scholarship is currently scarce, Sarra’s text will be a welcome contribution.

Creditor Rights and the Public Interest Restructuring Insolvent Corporations 1st Table of contents:

1. The Existing Regime for Restructuring Insolvent Corporations

  • Origins of the Canadian Restructuring Regime

  • Overview of the Canadian Insolvency Restructuring Regime

  • Proposals under the BIA

  • Plans of Arrangement or Compromise under the CCAA

  • Challenges Posed by Judicial Oversight of the CCAA

2. Current Theoretical Approaches to Insolvency Law

  • Market Theory Approaches to Insolvency

  • Debt Collection Theory

  • Rehabilitation Theory

  • Enterprise Theory in the Governance of Insolvent Corporations

  • Effective Corporate Governance in the Turnaround of the Insolvent Firm

  • Achieving the Policy Objectives

  • Measuring the Effectiveness of the Policy Instruments

3. Proposing a Conceptual Framework for Reconciling Stakeholder Interests

  • The Convergence and Divergence of Stakeholder Interest

  • Public Policy Recognition of the Value of Workout Schemes

  • Workers as Equitable Investors with Enhanced Decision Rights

  • Assigning a Value to Human Capital Investments

  • Participation and Decision Rights That Flow from Valuing Equitable Claims

  • Negotiating Outcomes to Protect Investments and Create Future Value

  • An Expanded Definition of Stakeholders

  • The State

  • Local Trade Suppliers

  • Tort Claimants

  • The Nature of Community and Other Stakeholder Interest

  • Alternative Strategies for Recognition of Equitable Interests

  • Enterprise Value Maximization as a Substantive Objective of Insolvency Law

  • Directors to Act in the Best Interests of the Corporation Having Regard to the Investments of All Stakeholders

  • Principles for Reconciling Traditional Creditors’ Rights with the Public Interest

  • The Role of the Judiciary in Reconciling Differences

4. Judicial Discretion under the CCAA

  • Judicial Recognition of the Public Interest

  • Purposive Interpretation or Judicial Overreach?

  • Use of the Stay Process to Recognize Diverse Interests

  • Debtor-in-Possession Financing

  • Definition of Classes as a Tool to Facilitate Restructuring

  • The Sanctioning of the Plan of Arrangement or Compromise

  • Ontario’s Case-Managed System: Effective Judicial Oversight of Restructuring

  • Court-Appointed Officers and the Governance of Insolvent Corporations

  • The Monitor

  • Chief Restructuring Officers

  • Med-Chem and the Governance Role of Insolvency Professionals

5. Algoma Steel Corporation: Recognition of Human Capital Investments

  • The 1991–2 CCAA Restructuring of Algoma

  • Court Ordered Mediation as a Key Element in the 1991–2 Restructuring

  • Co-determination as an Integral Part of the Restructuring Plan

  • Recognition of Community as Stakeholder in the 1991–2 CCAA Proceeding

  • The 2001 CCAA Application of Algoma Steel Corporation

  • The 2001 Plan of Arrangement and Reorganization

  • Governance under the 2001 Plan of Arrangement

  • Lessons for Stakeholder Use of CCAA Processes

6. Judicial Recognition of ‘Social Stakeholders’ in CCAA Proceedings: Anvil Range Mining Corporation

  • Curragh Inc.’s CCAA Proceeding

  • Anvil Range Mining Corporation: Concurrent Restructuring and Receivership Proceedings

  • The Court’s Express Recognition of ‘Social Stakeholders’

  • Preserving the Public Interest

7. Competing Public Interest Considerations: Canadian Red Cross Society

  • Sale of Assets in Advance of Court Approval of a Plan – Adjournment to Allow for Meaningful Participation

  • Effective Use of Mediation/Arbitration to Settle the Pension Claims

  • The Red Cross Plan of Arrangement

  • Lessons for Stakeholder Participation

  • Competing Public Interests

8. Canadian Airlines Corporation and the Public Interest

  • Canadian Airlines’ Insolvency and Workout

  • The Canadian Airlines Restructuring Plan

  • Classification of Creditors

  • Oppression Claims and the ‘Fairness’ Inquiry

  • Lessons for Judicial Consideration of the Public Interest

9. International Comparisons: Creditor Rights and the Public Interest

  • Public Policy Objectives of Workouts

  • Rehabilitation and Chapter 11 of the U.S. Bankruptcy Code

  • Workouts in France: Early Intervention to Protect Stakeholder Interests

  • Enterprise Wealth Maximization as an Objective of Insolvency Law

  • Recognition of Stakeholders’ Equitable Investments in the Firm during the Restructuring Process

  • Tort Claimants under U.S. Chapter 11 Proceedings

  • Workers, Unions and Section 1113 of the U.S. Bankruptcy Code

  • Recognition of Human Capital Investments in France

  • Reconciling the Rights of Traditional Creditors and Other Stakeholder Interests

  • Lessons from Creditor-Oriented Jurisdictions

  • Germany’s Insolvency Act

  • The System of Administration in the United Kingdom

  • Conclusion

10. Conclusion: Future Development of the Public Interest within the Enterprise Wealth Maximization Model

  • Developing Notions of Enterprise Wealth Maximization

  • The Public Interest in Encouraging Restructuring

  • Recognition of Stakeholder Interests

  • Reconciling Interests of Public Interest Stakeholders with Those of Traditional Creditors

  • Cross-Border Insolvency Proceedings and Implications for the Public Interest

  • Federal Legislative Review and the Implications for an Enterprise Wealth Maximization Model

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Tags: Janis Sarra, Public Interest, Insolvent Corporations