Arbitrating between Renegotiation and Bankruptcy: The Case of French Banks Facing Distressed SMEs

This empirical paper investigates the determinants of the arbitration taking place after a corporate default. Two ways of resolving financial distress are conceivable: either the creditors privately renegotiate with the debtor, or a formal bankruptcy procedure is triggered off. This arbitration depends on the legal context and, more specifically, on the national bankruptcy code. No study has been done on the French Civil Law. Yet, this legal system has inspired other important legislations in continental Europe. We use original data coming from the recovery units of five French commercial banks. Our sample gathers 735 credit lines allocated to 386 distressed companies (233 of them are used in our econometric regressions). Our variables encompass the profile of the company, the origin of the default (with a specific focus on faulty management), the nature of the credit relationship, and the type of borrowings. We test four hypotheses. Hypothesis H1 focuses on a tradeoff between the arguments based on coordination issues and the counterarguments based on the stakeholders’ bargaining power. Such tradeoff may depend on the legal environment. Hypothesis H2 suggests that, to support renegotiation, a bank needs information on the project’s profitability (adverse selection), and on the managers’ reliability (moral hazard). To reach an agreement, the bank must believe both conditions prevail. Hypothesis H3 predicts the likelihood of renegotiation increases with the bank’s financial involvement (size effect). Hypothesis H4 focuses on the level of collateralization (when the bank has inclination for liquidation, collaterals may increase the occurrence of bankruptcy, provided the law facilitates such liquidation and protects the bank’s priority on junior claims). To test H1 to H4, we use sequential LOGIT modeling to split between the variables explaining the decision to engage (or not) renegotiation and the variables explaining the success (or the failure) of renegotiation. Regarding H1, we find the “coordination argument” is of secondary importance compared to the “bargaining power counterargument”. Indeed, whatever the coordination issues, a major bank may not wish to renegotiate simply because the competition with the other minor creditors is expected to be weak under bankruptcy, and/or because the debtor cannot survive without the bank’s financial support. Consequently, even a court-administered procedure (as in France) may not have dissuasive effects provided the bank’s bargaining power is strong enough. Regarding H2, we show the project profitability and the managers’ reliability are two essential conditions to escape bankruptcy, but it needs time to discover them. Consequently, the first step of the arbitration (i.e. renegotiation attempt vs. direct bankruptcy ) does not depend on these conditions. Regarding H3, our results suggest that, when the lending is bigger and/or when the debt contract is longer, the chance of undertaking renegotiation is higher, but this does not predict such renegotiation shall be successful. Last, regarding H4, we do not find any evidence that the level of collateralization significantly influence the tradeoff between informal renegotiation and formal bankruptcy. Indeed, in France, liquidation is viewed as a secondary objective, and the social claims outrank the secured ones.