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The Design of Bankruptcy Law: A Case for Management Bias in Bankruptcy Reorganizations

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  • Berkovitch, Elazar
  • Israel, Ronen
  • Zender, Jaime F.

Abstract

In an incomplete contracting environment, bankruptcy is considered to be a renegotiation of the firm's financial contracts. An optimal bankruptcy law is derived as optimal restrictions on the environment within which the claimants to a distressed firm bargain. The law is used as a commitment device to ensure actions that are ex ante optimal but not subgame perfect. We show that the bankruptcy court can use two types of mechanisms to implement the optimal bankruptcy outcome: direct restrictions on the bargaining game between the claimants, and the use of a “restricted auction.” In both cases, the restrictions prevent the strategic use of bankruptcy by firms not in financial distress, provide for truthful revelation of information so that distress results in an ex post efficient allocation of resources, and establish a bias toward the manager in reorganizations that provides correct ex ante decision making incentives.

Suggested Citation

  • Berkovitch, Elazar & Israel, Ronen & Zender, Jaime F., 1998. "The Design of Bankruptcy Law: A Case for Management Bias in Bankruptcy Reorganizations," Journal of Financial and Quantitative Analysis, Cambridge University Press, vol. 33(04), pages 441-464, December.
  • Handle: RePEc:cup:jfinqa:v:33:y:1998:i:04:p:441-464_00
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    1. De Schepper, A. & Teunen, M. & Goovaerts, M., 1994. "An analytical inversion of a Laplace transform related to annuities certain," Insurance: Mathematics and Economics, Elsevier, vol. 14(1), pages 33-37, April.
    2. J. A. Nielsen & K. Sandmann, 1996. "The pricing of Asian options under stochastic interest rates," Applied Mathematical Finance, Taylor & Francis Journals, vol. 3(3), pages 209-236.
    3. Alziary, Benedicte & Decamps, Jean-Paul & Koehl, Pierre-Francois, 1997. "A P.D.E. approach to Asian options: analytical and numerical evidence," Journal of Banking & Finance, Elsevier, vol. 21(5), pages 613-640, May.
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    Cited by:

    1. Lucian Arye Bebchuk, 2002. "Ex Ante Costs of Violating Absolute Priority in Bankruptcy," Journal of Finance, American Finance Association, vol. 57(1), pages 445-460, February.
    2. M. M. Buehlmaier, Matthias, 2014. "Debt, equity, and information," Journal of Mathematical Economics, Elsevier, vol. 50(C), pages 54-62.
    3. Ronel Elul & Piero Gottardi, 2015. "Bankruptcy: Is It Enough to Forgive or Must We Also Forget?," American Economic Journal: Microeconomics, American Economic Association, vol. 7(4), pages 294-338, November.
    4. Mitchell Berlin & Loretta J. Mester, 2000. "Optimal Financial Contracts for Large Investors: The Role of Lender Liability," Center for Financial Institutions Working Papers 99-33, Wharton School Center for Financial Institutions, University of Pennsylvania.
    5. Nicolae STEF, 2013. "Severity of the Voting Rules in Bankruptcy," Working Papers of LaRGE Research Center 2013-07, Laboratoire de Recherche en Gestion et Economie (LaRGE), Université de Strasbourg.
    6. Ansgar Wohlschlegel, 2006. "Bankruptcy law and financial structure: The impact of managerial incentives," The European Journal of Finance, Taylor & Francis Journals, vol. 12(4), pages 333-345.
    7. Berlin, Mitchell & Mester, Loretta J., 2001. "Lender Liability and Large Investors," Journal of Financial Intermediation, Elsevier, vol. 10(2), pages 108-137, April.
    8. Anderson, Ronald W. & Nyborg, Kjell G., 2011. "Financing and corporate growth under repeated moral hazard," Journal of Financial Intermediation, Elsevier, vol. 20(1), pages 1-24, January.
    9. Bigus, Jochen, 2002. "Bankruptcy law, asset substitution problem, and creditor conflicts," International Review of Law and Economics, Elsevier, vol. 22(2), pages 109-132, August.
    10. Hege, Ulrich, 2003. "Workouts, court-supervised reorganization and the choice between private and public debt," Journal of Corporate Finance, Elsevier, pages 233-269.
    11. Kolecek, Ludek, 2008. "Bankruptcy laws and debt renegotiation," Journal of Financial Stability, Elsevier, pages 40-61.
    12. Helwege, Jean & Packer, Frank, 2003. "Determinants of the choice of bankruptcy procedure in Japan," Journal of Financial Intermediation, Elsevier, vol. 12(1), pages 96-120, January.
    13. Michelle J. White, 2005. "Economic Analysis of Corporate and Personal Bankruptcy Law," NBER Working Papers 11536, National Bureau of Economic Research, Inc.
    14. Mitchell Berlin & Loretta J. Mester, 2000. "Optimal Financial Contracts for Large Investors: The Role of Lender Liability," Center for Financial Institutions Working Papers 99-33, Wharton School Center for Financial Institutions, University of Pennsylvania.
    15. Mitchell Berlin & Loretta J. Mester, 1999. "Financial contracts and the legal treatment of informed investors," Working Papers 99-8, Federal Reserve Bank of Philadelphia.
    16. Ondøej Knot & Ondøej Vychodil, 2006. "Czech Bankruptcy Procedures: Ex-post Efficiency View," Working Papers IES 2006/03, Charles University Prague, Faculty of Social Sciences, Institute of Economic Studies, revised Jan 2006.
    17. Hotchkiss, Edith S. & Mooradian, Robert M., 2003. "Auctions in bankruptcy," Journal of Corporate Finance, Elsevier, vol. 9(5), pages 555-574, November.

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