The issue of information asymmetry in the creditors' and debtor’s game in insolvency proceedings – assumptions and perspectives

Abstract

At the European and global levels, bankruptcy laws seem to follow a specifically national pattern. However, depending on the level of protection allocated either to the creditor or the debtor, bankruptcy systems can be divided into creditor-oriented or debtor-oriented systems. The ultimate goal of this analysis is to show that, contrary to perception devised at the European and Romanian level, the protection of creditors cannot be achieved by implementing a strict pro-creditor bankruptcy law. This end result can only be reached by implementing a pro-debtor bankruptcy system.

This conclusion, as we will show below, is based on the premise that the interests of creditors and debtors are not on contradictory positions as they have been perceived up to this moment. Rather we have found there seems to be an alignment of the interests of the two. Thus, the efficiency of the Romanian bankruptcy laws cannot be screened and tested in relation the existing creditor protection mechanism. It’s true efficiency can only be shown by considering its debtors recovery rate, thus ensuring an end result where the satisfaction and economic interests of creditors are met.

This analysis is divided into two parts. In the first part we consider the main indicators of a pro-creditor bankruptcy law focusing on the analysis of the Romanian bankruptcy model. We will also consider the efficiency of this typology of law, concluding that it does not achieve the desired result of providing an adequate protection for creditors in bankruptcy proceedings. The second part of our endeavour brings forth a rethinking of the systemic creditor protection during bankruptcy proceedings through the analysis of the concept of informational asymmetry and corporate governance. Finally, we conclude that the only way one can achieve a adequate level of creditor protection in Romanian bankruptcy law is through the implementation of an efficient mixed-incentive bankruptcy legislation.