Third-Party Releases in Insolvency of Multinational Enterprise Groups

2021 ◽  
Vol 18 (1) ◽  
pp. 107-140
Author(s):  
Ilya Kokorin
Keyword(s):  
Business Models ◽  
Multinational Enterprise ◽  
Third Parties ◽  
Third Party ◽  
Insolvency Law ◽  
Legal Responses ◽  
Group Members ◽  
Legitimate Expectations ◽  
Enterprise Groups ◽  
The Eu

Abstract Europe is experiencing the rise of restructuring proceedings, which has recently culminated in the adoption of the Restructuring Directive. While being a major achievement in harmonising substantive (pre)insolvency law in the EU, it lacks rules targeting restructuring of multinational enterprise groups. As a result, effectiveness of group reorganisations may be undermined. Nevertheless, some jurisdictions adopt innovative tools, facilitating group solutions. Among them – third-party releases. Such releases entail a total or partial discharge or amendment of claims against third parties, such as co-obligors, guarantors and collateral providers (typically, group members) in the insolvency or restructuring proceeding of the principal debtor.The diversity of approaches to third-party releases highlights their controversial nature. Such releases may frustrate legitimate expectations of creditors relying on cross-guarantees and other forms of cross-liability arrangements. Extending the effects of debt reorganisation to third parties in the absence of a separate insolvency proceeding may also run contrary to the longstanding views on corporate insolvency and entity shielding. This article argues that a single-entity-restructuring risks being short-sighted and that third-party releases are a matter of commercial necessity, synchronising legal responses with actual business models and better addressing the complexity of group interdependencies, realised through various intra-group liability arrangements.

The law applicable to third-party effects of assignment and the conflict rules for insolvency according to EU law

2019 ◽  
Vol 24 (4) ◽  
pp. 664-684
Author(s):  
Christian Heinze ◽  
Cara Warmuth
Keyword(s):  
Case Law ◽  
Legal Framework ◽  
Third Party ◽  
Legislative Process ◽  
Insolvency Law ◽  
Ongoing Debate ◽  
Good Opportunity ◽  
Insolvency Regulation ◽  
The Law ◽  
The Eu

Abstract In March 2018, the European Commission issued its proposal for a regulation on the law applicable to third-party effects of assignments of claims, aiming to put an end to the ongoing debate on this issue and the legal uncertainty associated with it. On the basis of the Commission’s decision in favour of the application of the law of the assignor’s habitual residence, this article discusses the consequences of the Proposal under European Union (EU) insolvency law. For that purpose, the coherence of the Proposal with the Insolvency Regulation will be examined, first in general and then in more detail. The analysis comes to the result that the Commission’s objective of aligning the Proposal with the legal framework of the Insolvency Regulation has predominantly been well achieved. The authors point out remaining minor inaccuracies that may be clarified in the further legislative process or by later case law. It is concluded that, from the perspective of international insolvency law, the proposed uniform conflict-of-laws rule at the EU level offers a good opportunity to promote legal certainty with regard to cross-border assignments of claims in the future.

Intergroup Bias Influences Third-Party Punishment and Compensation: In-group Relationships Attenuate Altruistic Punishment

2018 ◽  
Vol 46 (8) ◽  
pp. 1397-1408 ◽  
Author(s):  
Yingjie Liu ◽  
Xiaohua Bian ◽  
Yu Hu ◽  
Ya-Ting Chen ◽  
Xuzhou Li ◽  
...  
Keyword(s):  
Dictator Game ◽  
Third Parties ◽  
Intergroup Bias ◽  
Third Party ◽  
Altruistic Punishment ◽  
Intergroup Relationships ◽  
Trait Empathy ◽  
Group Members ◽  
Group Relationships ◽  
Shed Light

Intergroup relationships can impact on a third party's willingness to punish a violator, but few researchers have explored how intergroup relationships affect third-party compensation tendencies. We recruited 163 participants to observe a dictator game, and then choose either to punish the dictator or compensate the recipient, each of whom could be from the participant's in-group or out-group. Third parties often chose not to punish in-group dictators and to compensate both in-group victims and out-group victims. When out-group members transgressed against the in-group, participants punished these out-group members just as often as they compensated the in-group recipients, although they punished out-group dictators more harshly than others overall. However, when both proposer and recipient came from the out-group, participants often did not intervene. We also found that third-party punishment and compensation were related to individual differences in participants' trait empathy and Machiavellianism. Our findings shed light on the modulating effect of intergroup relationships on third-party altruistic decisions.

scholarly journals The Rise of ‘Group Solution’ in Insolvency Law and Bank Resolution

2021 ◽  
Author(s):  
Ilya Kokorin
Keyword(s):  
Financial Stability ◽  
Multinational Enterprise ◽  
Full Potential ◽  
Insolvency Law ◽  
Value Maximization ◽  
Bank Resolution ◽  
Policy Objectives ◽  
Group Members ◽  
Scope Of Application ◽  
Financial Interconnectedness

AbstractThis article traces the emergence of the concept of ‘group solution’ and its manifestations in insolvency law and bank resolution as an alternative to the rigid entity-by-entity approach. The rise of this concept can be linked to the recognition of the specificity of problems related to the insolvency of multinational enterprise groups, arising from group operational and financial interconnectedness. This has not happened at once, but has resulted from the evolution of views and ideas, evident in hard and soft law instruments of the 2000s and the 2010s. In light of this important development the article explores the concept of a group solution, its rationale, scope of application and limitations. It concludes that despite the gradual acceptance of the group phenomenon, a group solution has not been formed as a coherent and well-defined legal principle. Instead, it represents a variety of approaches, tools and practices, which pursue different policy objectives underpinned by different societal values. Among them are asset value maximization, business rescue, the protection of financial stability and the preservation of banks’ critical functions. With all its flexibility, a group solution has one pervasive limitation—it cannot trump the interests of individual group members and their creditors. At the same time, in order to realize the full potential of a group solution, it is necessary to embrace the group-sensitive and forward-looking interpretation of creditors’ interest, facilitating commercially sensible and practical group solutions.

scholarly journals Prawo właściwe dla skutków przelewu wierzytelności w stosunku do osób trzecich. Uwagi z perspektywy międzynarodowego prawa upadłościowego

2019 ◽  
Vol 24 ◽  
pp. 47-75
Author(s):  
Wojciech Klyta
Keyword(s):  
Third Parties ◽  
Third Party ◽  
Insolvency Law ◽  
Conflict Of Laws ◽  
Applicable Law ◽  
The Third ◽  
The Right ◽  
Insolvency Proceedings ◽  
Rome I ◽  
Foreseeable Risk

The claims are rights in personam but the assignment of claims has a hybrid nature. Abolishing the “nomina ossibus inhaerent” rule has increased commercial significance of the assignment of claims. However, the contemporary legal situationleaves parties with great legal uncertainty, as to the question under which circumstances does the cross — borders assignment is valid. A recent judgment of the CJEU of 9 October 2019 (C — 548/18) in case BGL BNP Paribas SA v. TeamBank AG Nürnberg has augmented this uncertainty. The Luxemburg Court ruled that: “Article 14 of the Regulation (EC) No 593/2008 of the European Parliament and of the Council of 17 June 2008 (‘Rome I’) must be interpreted as not designating, directly or by analogy, the applicable law concerning the third-party effects of the assignment of a claim in the event of multiple assignments of the claim by the same creditor to successive assignees”. In this situation, one would highly welcome an attempt to establish a new set of conflict of laws rules relating to the law applicable to third — parties effects of the assignment of claims. This attempt has recently been made by the European Commission in its Report “on the question of the effectiveness of an assignment or subrogation of a claim against third parties and the priority of the assigned or subrogated claim over the right of another person”, dated 29 September 2016. In the present article, the author reviews the most important propositions formulated in the conflicts’ doctrine through the “lens” of the international insolvency law. Multiply provisions of the Regulation (EU) 2015/848 of 20 May 2015 on insolvency proceedings (recast) — despite many judgments of the CJEU in this area — also lack certainty. Insolvency is a foreseeable risk, but without clear rules concerning the third parties’ effects of the assignment of claims, it may become unenforceable for the creditors of the assignor.

scholarly journals Communicating Scientific Choices in a Multilingual EU: The Position of “Third Parties” in EU Agencies’ Technical Assessments

2020 ◽  
Vol 11 (3) ◽  
pp. 667-682
Author(s):  
Alessia MONICA
Keyword(s):  
Risk Assessment ◽  
Third Parties ◽  
Health Protection ◽  
Third Party ◽  
Democratic Process ◽  
Eu Law ◽  
Specific Interest ◽  
Administrative System ◽  
Scientific Assessment ◽  
The Eu

Frequently, decisions related to health protection are taken directly on the basis of scientific assessment and they are not clearly understood, as is highlighted in the Xylella example. Therefore, this article suggests that coherent processing of information in risk assessment may allow also a “third party” (who has not already expressed a specific interest in the procedure) to participate. In order to truly grasp the EU administration, an accountable way of communicating is helpful. Therefore, communication around the democratic process might be based on EU administrative principles and rules supporting a composite administrative system: it must not neglect the implications of compliance with the multilingual principle and its consequences for EU law, which would also lead to greater trust in risk assessment.

Cláusulas de franquicia o deducible en seguros de responsabilidad civil en el Derecho español: Naturaleza y efectos respecto de terceros perjudicados

2018 ◽  
pp. 101
Author(s):  
Rafael Lara González
Keyword(s):  
Civil Liability ◽  
Third Parties ◽  
Insurance Contract ◽  
Third Party ◽  
Liability Insurance ◽  
Legal Doctrine ◽  
Insurance Contracts ◽  
Spanish Law ◽  
Palabras Clave ◽  
Legal Nature

ResumenPese a su ubicuidad en la práctica contractual, las cláusulas de franquicia han recibido tratamiento incidental en la doctrina. La discusión sobre ellas se ha enfocado en los contratos de seguros de responsabilidad civil, y en la interpretación del artículo 76 de la Ley española de Contrato de Seguro. En este contexto se ha tratado de establecer si el asegurador puede o no oponer la cláusula de franquicia al tercero perjudicado. El presente trabajo analiza la cláusula de franquicia en la obligación principal del asegurador, su naturaleza jurídica, y examina su relación con los terceros perjudicados. La consideración principal a este respecto estará en si nos encontramos ante un seguro obligatorio o ante un seguro voluntario de responsabilidad civil. Palabras clave: Contrato de seguro; Cláusula de franquicia; Terceroperjudicado; Responsabilidad civil.AbstractDespite their ubiquity in contractual praxis, deductible clauses have received only incidental treatment in legal doctrine. Discussion on them has focused on civil liability insurance contracts, and the interpretation of article 76 of the Spanish Law of Insurance Contracts. In this context it has been attempted to establish whether the insurer can invoke the clause to oppose the injured third party's claim. This article examines the deductible clause included in the insurer's main obligation, its legal nature, and its relation to injured third parties. The main consideration in this regard will be whether the insurance contract is of a mandatory or voluntary nature.Keywords: Insurance contract; Deductible clause; Injured third party; Civil liability.

Children’s Group Biases In Third-Party Punishment Are Guided By Norms-Focused Behaviors

2020 ◽  
Author(s):  
Maria Luz Gonzalez-Gadea ◽  
Antonella Dominguez ◽  
Agustin Petroni
Keyword(s):  
Developmental Trajectories ◽  
Third Party ◽  
Controlled Processes ◽  
Group Members ◽  
Shed Light

Children tend to punish norm transgressions, even when they are mere external observers—a phenomenon known as third-party punishment. This behavior is influenced by group biases, as children unevenly punish in-group and out-group members.Two opposing hypotheses have been proposed to explain group biases during third-party punishment: the Norms-Focused Hypothesis predicts that individuals punish more harshly selfishness by in-group than by out-group members; contrarily, the Mere Preferences Hypothesis predicts that people are more lenient to selfishness by in-group than by out-group members. Here, we tested these hypotheses in children between six and 11 years of age (N=124) and explored the mechanisms underlying group biases during the development of third-party punishment. Our results supported the Norms-Focused Hypothesis: children preferentially punished unfair sharing from in-group members evidencing in-group policing bias, and they were also more willing to punish selfishness directed at in-group members than out-group members, showing in-group favoritism bias. We observed different developmental trajectories and mechanisms associated with these biases: while in-group policing remained stable over childhood as automatic as well as more effortful and controlled processes, in-group favoritism increases with age and was manifested only in the context of more controlled processes. These results shed light on the mechanisms underlying the development of third-party decisions and could be used to plan strategies and interventions to manipulate group biases in children.

Formation of Contract and Third Parties in Cambodia

2018 ◽  
Author(s):  
Ly Tayseng
Keyword(s):  
Academic Writing ◽  
Case Law ◽  
Civil Code ◽  
Third Parties ◽  
Third Party ◽  
The Third ◽  
Contract Formation ◽  
The Law ◽  
The Right ◽  
Formal Requirements

This chapter gives an overview of the law on contract formation and third party beneficiaries in Cambodia. Much of the discussion is tentative since the new Cambodian Civil Code only entered into force from 21 December 2011 and there is little case law and academic writing fleshing out its provisions. The Code owes much to the Japanese Civil Code of 1898 and, like the latter, does not have a requirement of consideration and seldom imposes formal requirements but there are a few statutory exceptions from the principle of freedom from form. For a binding contract, the agreement of the parties is required and the offer must be made with the intention to create a legally binding obligation and becomes effective once it reaches the offeree. The new Code explicitly provides that the parties to the contract may agree to confer a right arising under the contract upon a third party. This right accrues directly from their agreement; it is not required that the third party declare its intention to accept the right.

Contracts for the Benefit of Third Parties Under the Taiwan Civil Code

2018 ◽  
Author(s):  
Sheng-Lin JAN
Keyword(s):  
Civil Code ◽  
Third Parties ◽  
Third Party ◽  
The Third ◽  
Legal Relationship ◽  
The Third Party ◽  
Privity Of Contract

This chapter discusses the position of third party beneficiaries in Taiwan law where the principle of privity of contract is well established. Article 269 of the Taiwan Civil Code confers a right on the third party to sue for performance as long as the parties have at least impliedly agreed. This should be distinguished from a ‘spurious contract’ for the benefit of third parties where there is no agreement to permit the third party to claim. Both the aggrieved party and the third party beneficiary can sue on the contract, but only for its own loss. The debtor can only set off on a counterclaim arising from its legal relationship with the third party. Where the third party coerces the debtor into the contract, the contract can be avoided, but where the third party induces the debtor to contract with the creditor by misrepresentation, the debtor can only avoid the contract if the creditor knows or ought to have known of the misrepresentation.

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