Logo: to the web site of Uppsala University

Abstract

The restructuring agreement. The exercise of power and interest relationships in the restructur- ing of limited companies.

This doctoral thesis deals with the restructuring agreement, more specifically with the overall agreement that can be concluded within the framework of a restructuring plan, in particular with regard to the exercise of power and interest relationships in the restructur- ing of limited companies.

In order to help a debtor in financial difficulties to reach an agreement with creditors and shareholders, the rules of a company restructuring procedure allow for the modifica- tion of individual claims against the will of the affected parties through a restructuring plan. In doing so, the rules involve significant departures from fundamental principles of contractual compliance, freedom of contract, and ownership rights. However, the proce- dure is based on the active participation of the debtor, the administrator, and the affected parties. Since the interests and desires of the parties are often in conflict, some of them must be given priority over others. This conflict becomes particularly complex because the parties who end up in a kind of coercive community can be quite diverse.

The power that some parties are given over others, and the interests that can be accom- modated in a plan, will of course depend on the design of the rules. The distribution of power must reflect a balance between the interest of a system sufficiently efficient for successful confirmation of restructuring plans and the interest of due (or reasonable) consideration of the rights of individual parties.

The thesis examines and analyzes how the applicable rules of the restructuring agree- ment are designed in different systems. This is done to find out how the power between the parties involved is distributed in the systems and what interests they favour and disfa- vour. Furthermore, several basic questions for the field of law are dealt with, such as the primary purpose of different regulations, the underlying principles that enable coercion to be exercised against individuals, and what causes different parties to have different interests.

In addition to Swedish law, the thesis covers US law, German insolvency law, the recom- mendations of the Nordic-Baltic network, the EU Directive (2019/1023) and Finnish law.