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The threat of corporate groups and the insolvency connection
Author(s) -
Dähnert Alexander
Publication year - 2009
Publication title -
international insolvency review
Language(s) - English
Resource type - Journals
SCImago Journal Rank - 0.125
H-Index - 7
eISSN - 1099-1107
pISSN - 1180-0518
DOI - 10.1002/iir.176
Subject(s) - insolvency , law and economics , context (archaeology) , group (periodic table) , corporate group , business , bankruptcy , collateral , political science , sociology , law , finance , corporate governance , paleontology , chemistry , organic chemistry , biology
This paper attempts to shed some light on the issue referred to by the term ‘group threat’. The factual appearance of corporate groups will be emphasized, as well as the question of what particular dangers arise from groups of legal entities. It will be argued that the source of group threats lies in the supremacy of group interest over the interests of affiliates, particularly in groups acting as a single unit. However, while efficiency gains inherent in group structures have attracted considerable attention in the debate about the insolvencies of corporate groups, the aspect of how the restriction of group threats can be reconciled with these efficiency‐preservation concepts has been neglected. This appears of some concern given the fact that group threats and group synergy effects are part of the same coin. Both sides of the Janus‐head ought to be considered in insolvency concepts and an attempt will be made to put the specific aspect of group threats into the wider context of group insolvencies. Existing approaches will be introduced, summarized and categorized, with a particular view taken of their common characteristics. It is argued that most insolvency concepts suffer from the same fundamental deficiencies: the focus on the structure of groups, which makes the very nature of integrated companies difficult to grasp. Consequently, this calls into question the application of these concepts and leads, furthermore, to significant collateral damage in the shape of principles central to company law. Resulting from these shortcomings and from the insight that the supremacy of the group interest constitutes the fundamental source of group characteristics, this paper suggests as an alternative that the focus be placed on wrongful conduct, the argument being that it is not the static structure, but the way the group is directed and ruled, which constitutes the decisive criterion for insolvency concepts. The understanding of group threats is therefore the key to a satisfactory approach to group specific challenges in insolvency. Copyright © 2009 John Wiley & Sons, Ltd.