Reorganization in US and European Bankruptcy law

European countries have amended their bankruptcy statutes in the past decades to increase the likelihood of a company’s continuation in bankruptcy. Liquidation procedures are ill suited to realize the full value of the company as a going concern. An infusion of new finance raises company valuation and makes continuation through reorganization more likely. Reorganization preserves value, if general creditors as the main beneficiaries of reorganization play a crucial role in reorganization proceedings. Legal origins of national bankruptcy legislations are less important in explaining the incidence of reorganization than national attitudes towards failure and the prevalence of equity over debt finance. JEL Classification K12     

The generation and exploitation of technological change: market value and total factor productivity

In this paper we articulate and test the hypothesis that TFP is a reliable and relevant measure of firm’s innovation capabilities, and, as such, accounts for Tobin’s q indicator. With this aim, we investigate empirically the relationship between firm level total factor productivity and the Tobin’s q. Measuring Tobin’s q allows inferring the actual value of knowledge capital from stock market valuation. We use a panel of companies listed on UK and the main continental Europe financial markets (Germany, France and Italy) for the period 1995–2005. Our results confirm that TFP is a reliable indicator of firm’s innovative capabilities. When we control for firm’s R&D investments and intangible assets, the effects of TFP on market value remain highly significant. This suggests that TFP is a broader measure of innovation capability than R&D is. The validation of the Tobin’s q and TFP relationship has important implications concerning firm’s technological innovation measurement.     

诉讼外消费者债务清理制度研究简

近年我国消费信贷迅速发展，与之相配套的无力偿债纠纷解决制度却久未建立，导致消费者难以通过法律途径寻求救济。在法院内破产程序和诉讼外债务清理程序这两个层面的纠纷解决机制中，当事人于诉讼外程序中不止可行使实体处分权，且得行使程序处分权以达成偿还方案。自然人破产能力的缺失更使该程序成为我国当下解决消费者过度负债问题的不二选择。     

The Roots of Modern White-Collar Crime: Does the Modern Form of White-Collar Crime have its Foundation in the Transition from a Society Dominated by Agriculture to One Dominated by Industry?

The purpose of the present paper is to investigate whether the process of transition from an agricultural to an industrial society was a watershed for white-collar crime, such that this type of crime increased rapidly in connection with the industrialization process. The theoretical reasoning behind this notion is that the transition process promoted a mentality characterized by self-centered values and a culture of competitiveness, which together paved the way for fraud perpetrated at the expense of others. The data are from Statistic Sweden’s historical records and cover the period of 1864–1912. Since there is no way to measure all crimes that can be defined as white collar crime, we have used bankruptcy offences as an example of white collar crime. The results do not support the notion that the transition period from an agricultural to an industrial society showed an increase in bankruptcy offences. Instead, the results show that when fluctuations in the economy are taken into account, the industrialization process per se entailed less bankruptcy offences. On the other hand, other research using the case of Sweden has shown that it was first after World War II that bankruptcy offences increased rapidly. Our argument is that the transition process as a structural mechanism had a greater impact on bankruptcy offences when industrialized capitalism became advanced.

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Constitutionalism and imperialism Sub Specie Spinozae

This paper examines the public, private and political in the work of Adriana Cavarero by drawing upon the situations of two women whose lives feature in her work: Elizabeth I and Penelope. It includes an analysis of the way in which Cavarero is rethinking Hannah Arendt’s view of ‘the political.’ Cavarero’s exposition of the metaphor of the King’s two bodies in the common law is explored, along with her critique of hylomorphism. Finally, it extends her work in Stately Bodies by considering different images of the power of the body in later political discourses regarding the worker’s body and the effect of the advance of techno-science. This paper was presented at ‘The State He’s In – Political Philosophy and the Figural: A Conference with Adriana Cavarero on her book Stately Bodies: Literature, Philosophy and the Question of Gender’ at Warwick University, Department of Philosophy in May 2004. I would like to thank Adriana and all the conference participants for their comments. Thanks also to the referees of this paper. I have kept the informal style of presentation from the conference, along with the emphasis upon theoretical, rather than historical, analysis.     

Elizabethan ‘Spinning’ and Penelope’s Weaving: The Political, the Common Law and Stately Bodies

This paper examines the public, private and political in the work of Adriana Cavarero by drawing upon the situations of two women whose lives feature in her work: Elizabeth I and Penelope. It includes an analysis of the way in which Cavarero is rethinking Hannah Arendt’s view of ‘the political.’ Cavarero’s exposition of the metaphor of the King’s two bodies in the common law is explored, along with her critique of hylomorphism. Finally, it extends her work in Stately Bodies by considering different images of the power of the body in later political discourses regarding the worker’s body and the effect of the advance of techno-science. This paper was presented at ‘The State He’s In – Political Philosophy and the Figural: A Conference with Adriana Cavarero on her book Stately Bodies: Literature, Philosophy and the Question of Gender’ at Warwick University, Department of Philosophy in May 2004. I would like to thank Adriana and all the conference participants for their comments. Thanks also to the referees of this paper. I have kept the informal style of presentation from the conference, along with the emphasis upon theoretical, rather than historical, analysis.     

Theoretical foundation for a debtor friendly bankruptcy law in favour of creditors

Although many works support creditor friendly bankruptcy laws, an evolution towards debtor friendly systems is at work. This paper proposes a theoretical ground to meet this paradox. It reconsiders the economic role of bankruptcy law by stressing on the courts’ production of information. It reveals that the transmission of a lenient signal by judges makes it possible to reduce the hazard that bad risks seek to avoid going on trial. Thus, it shows that debtor friendly bankruptcy laws are not systematically opposed to creditors’ interests. They reduce the risk of the economy and contribute to the improvement of the global efficiency.      

Analytical review on the major issues of the new bankruptcy (law) legislation

The bankruptcy law is an integral part of the legal system of societies with market economy. After many years of preparation, the draft of the new bankruptcy law in China was submitted to the Standing Committee of the National People’s Congress twice and is waiting for the third approval to be enacted. Drawing on the experiences of other countries, the new bankruptcy law tries to carry out the concepts of market economy, eliminate the residual influences of planned economy that existed in the old law, protect lawful rights and interests of creditors and debtors, and maintain the order of socialist market economy. This thesis analyzes and researches on the major and controversial issues that emerged during the legislation of the new bankruptcy law from the aspects such as the principle of the legislation, criteria of bankruptcy, preservation or abolishment of policy-related bankruptcy, protection of the employees’ rights and interests of bankrupt enterprises, the creditors’ committee system, the trustee system, reorganization system to prevent bankruptcy, and the legal obligations of bankrupt, and so on. It also gives a comprehensive introduction to the innovation and modification of the new bankruptcy law.     

On Desire,Transcendence and Sacrifice

This contribution offers a careful but critical reading of Johan van der Walt’s theory of post-apartheid law as sacrifice and social struggle. By placing a theoretical emphasis on the inevitability of violence and the impossibility of love, Van der Walt’s thesis risks denying the possibility of thinking the world in a different, way. In order to reconceive the terms of community and horizontality in post-apartheid South Africa, there is a need to move beyond thinking the world as constructed according to tension, conflict and self-preservation at the expense of understanding and compassion. In developing a critique of law as sacrifice, I utilise Panu Minkkinen’s call for justice as the beyond of law that goes beyond the mere battle for recognition. I also address his view that the unappeasable desire of metaphysics entails the recognition that there is hope for the future and the recovering of transcendence as otherness. Secondly, I use Louis Wolcher’s work on Zen Buddhism to argue that any obsession with conceptual purity, as is glimpsed in Van der Walt’s work, ignores the impossibility of setting down the immutable and universal truth for all time. In other words, however attractive a theory of law as sacrifice may be, it is only one perspective amongst many others. Lastly, I contrast Van der Walt’s work with that of Luce Irigaray, and in particular her formulation of ‘horizontal transcendence’ that makes possible relations ‘between two’.

Heteronormativity and the European Court of Human Rights

This article examines a recent judgment by the European Court of Human Rights (E.B. v France) that upheld the complaint of a homosexual woman who alleged that her application for authorization to adopt a child had been refused by domestic French authorities on the grounds of her sexual orientation. I argue that the judgment constitutes an innovative and atypical legal consideration of, and challenge to, the heteronormative social relations of contemporary European societies. After exploring the evidence presented by the applicant, and the Court’s interpretation of it, I argue that in order to reach its judgment it was necessary for the Court to make a significant departure from its established jurisprudence in relation to sexual orientation. An essential element of this involved the adoption of a distinctive critical approach, strongly resonant with aspects of ‘queer theory’, which focused attention on the social, cultural and political construction of normative heterosexuality. Whilst a number of commentators have assessed the importance of the judgment in terms of its evolution of ‘gay rights’ in the area of family life, I argue that the Court’s reconceptualized ‘theoretical’ understanding of, and critical approach to, heteronormativity offers the potential to expand the scope of the European Convention on Human Rights across a number of areas of social life—in marriage, public assembly, freedom of expression, as well as family life—where non-heterosexuals continue to face discrimination in contemporary Europe.     

The Sutta on Understanding Death in the Transmission of Borān Meditation From Siam to the Kandyan Court

This article announces the discovery of a Sinhalese version of the traditional meditation (borān yogāvacara kammaṭṭhāna) text in which the Consciousness or Mind, personified as a Princess living in a five-branched tree (the body), must understand the nature of death and seek the four gems that are the four noble truths. To do this she must overcome the cravings of the five senses, represented as five birds in the tree. Only in this way will she permanently avoid the attentions of Death, Māra, and his three female servants, Birth, Sickness and Old Age. In this version of the text, when the Princess manages not to succumb to these three, Māra comes and snatches her from her tree and rapes her. The Buddha then appears to her to explain the path to liberation. The text provides a commentary, padārtha, which explains the details of the symbolism of the fruit in terms of rebirth and being born, the tree in terms of the body, etc. The text also offers interpretations of signs of impending death and prognostications regarding the next rebirth. Previously the existence of Khmer and Lānnā versions of this text have been recorded by Francois Bizot and Francois Lagirarde, the former publishing the text as Le Figuier a cinq branches (Le figuier à cinq branches, 1976). The Sinhalese version was redacted for one of the wives of King Kīrti Śrī Rājasiṅha of Kandy by the monk Vara?āṇa Mahāthera of Ayutthayā. This confirms earlier speculation that this form of borān/dhammakāya meditation was brought to Sri Lanka with the introduction of the Siyam Nikāya in the mid-eighteenth century. It also shows that in Sri Lanka, as in Ayutthayā, this form of meditation—which in the modern period was to be rejected as ‘unorthodox’—was promoted at the highest levels of court and Saṅgha.     

Derrida’s <Emphasis Type="Italic">The Purveyor of Truth</Emphasis> and Constitutional Reading

In this article the author explores Jacques Derrida’s reading in The Purveyor of Truth of Edgar Allan Poe’s The Purloined Letter. In his essay, Derrida proposes a reading which differs markedly from the interpretation proposed by Lacan in his Seminar on ‘The Purloined Letter’. To appreciate Derrida’s reading, which is not hermeneutic-semantic in nature like that of Lacan, it is necessary to look at the relation of Derrida’s essay to his other texts on psychoanalysis, more specifically insofar as the Freudian death drive is concerned. The present article explores this ‘notion’ as elaborated on by Freud in Beyond the Pleasure Principle as well as Derrida’s reading of this text. It also investigates the importance of the ‘notion’ of the death drive as well as the significance of Derrida’s reading of The Purloined Letter for constitutional interpretation. This is a modified version of a paper presented at the Critical Legal Conference, 14–16 September 2007 at Birkbeck Law School, University of London.

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Socialization or prisonization? Utilizing Sykes’ “pains of imprisonment” to examine deprivations in America’s public schools

Highly publicized incidents of serious school violence have resulted in the enactment of numerous rules and regulations, many of which are overly restrictive in nature. These restrictive policies are based on an unsubstantiated belief that school violence has become a national epidemic. Further, while offered under the guise of safety and security, these policies have resulted in the limitations of students’ rights. The purpose of this paper is to explore those limitations. Utilizing Sykes’ typology, “pains of imprisonment”, we discuss the deprivations that exist within the school institution. Recommendations for seeking a balance between the rights of students and the needs of school administrators to maintain a safe school environment are also offered.

论破产法上债务人高管人员民事责任的追究

The Enterprise Bankruptcy Law has designed the regime for debtor’s senior managers to bear civil liabilities, while the framework design concerning the prosecution mechanism of civil liabilities is still unclear. How to establish a prosecution mechanism of civil liabilities of debtor’s senior managers in line with the purposes of the bankruptcy regime is a substantial issue during the implementation of Enterprise Bankruptcy Law. The realization of the civil liabilities regime of debtor’s senior managers depends on the establishment and operation of a relatively well-developed prosecution mechanism of civil liabilities. The focus of the prosecution mechanism of civil liabilities is to determine the subject of prosecution of civil liabilities, the way to realize civil liabilities, and the special hearing proceedings and authorities of the court. Taking steps to clarify and improve the prosecution mechanism of civil liabilities focusing on the subjects of prosecution (debtor’s senior managers) and authorities of the court, is the essence and systematic safeguard of realizing the civil liabilities regime of debtor’s senior managers in the Enterprise Bankruptcy Law. Gan Peizhong, Ph.D, is a professor of law and director of the Research Center for Enterprise and Company Law at Peking University. Prof. Gan is a recognized expert on economic law, company law, bankruptcy law and the reform of state-owned enterprises in China. He has released numerous articles on Chinese law journals and published many books. His major publications include Encyclopedia of Chinese Economic Law (vice editor-in-chief), New Studies on Economic Law (co-editor), New Studies on Enterprise Law (author), Studies on Chinese Economic Adjudication (editor-in-chief), Studies on Foreign Economic Law in Beijing (editor-in-chief), General Theories on Economic Law (co-editor), Legitimate Exercise of the Corporate Control Rights (author). Moreover, he was named the “leading young and middle-aged jurist” by Beijing Law Society in 1999. In addition, Prof. Gan is the deputy-president of the Securities Law Association, a member of the Standing Committee of the Economic Law Association under China Law Society. He also serves as the consultant of the Legislative Affairs Commission of the NPC Standing Committee and Beijing Municipal People’s Congress, as well as the Haidian District Court of Beijing.     

The Quiet‐Loud‐Quiet Politics of Post‐Crisis Consumer Bankruptcy Law: The Case of Ireland and the Troika

A decade after the Global Financial Crisis, many developed economies continue to strain under excessive household debt. This article presents evidence suggesting that the failure of policymakers to enact debt relief measures may lie in the superior influence of the coordinated and concentrated financial sector over legislative processes, as compared to the diffuse and disorganised interests of consumer debtors. Post‐crisis popular interest in technical issues of personal insolvency law created only a narrow space of political opportunity. Soon these questions returned to the domain of technocratic actors and corporate influence. The article examines this situation through an inter‐disciplinary case study of consumer bankruptcy reform in Ireland under ‘Troika’ supervision. Proposals initially billed as assisting over‐indebted households developed into increasingly creditor‐friendly legislation in ‘quieter’ stages of technocratic decision‐making. The stark implications of these findings highlight obstacles to resolving household debt problems and consequent risks of economic and political instability.     

Authority in Early Prāsaṅgika Madhyamaka

This paper examines the role of pramāṇa in Jayānanda’s commentary to Candrakīrti’s Madhyamakāvatāra. As the only extant Indian commentary on any of Candrakīrti’s works (available only in Tibetan translation), written in the twelfth century when Candrakīrti’s interpretation of Madhyamaka first became widely valued, Jayānanda’s Madhyamakāvatāraṭīkā is crucial to our understanding of early Prāsaṅgika thought. In the portions of his text examined here, Jayānanda offers a pointed critique of both svatantra inferences and the broader Buddhist epistemological movement. In developing this critique, he cites at length Candrakīrti’s Prasannapadā treatment of svatantra, and so comes to comment on the locus classicus for the Svātantrika-Prāsaṅgika distinction. For Jayānanda, svatantra inferences are emblematic of the Dignāga-Dharmakīrti epistemological tradition, which asserts an unwarranted validity to human cognition. As such, Nāgārjuna’s philosophy admits neither svatantra inference, nor pramāṇa (as “valid cognition”) more generally. Instead, Jayānanda argues for Nāgārjuna’s “authority” (pramāṇa) as our prime means for knowing reality. Jayānanda’s account of authority offers a helpful counterbalance to the current trend of portraying Prāsaṅgika Madhyamaka as a form of skepticism.     

Using social network analysis to target criminal networks

Using social network analysis (SNA), we propose a model for targeting criminal networks. The model we present here is a revised version of our existing model (Schwartz and Rouselle in IALEIA Journal, 18(1):18–14, 2008), which itself builds on Steve Borgatti’s SNA-based key player approach. Whereas Borgatti’s approach focuses solely on actors’ network positions, our model also incorporates the relative strength or potency of actors, as well as the strength of the relationships binding network actors.

<Emphasis Type="Italic">Ayam aham asmīti</Emphasis>: Self-consciousness and Identity in the Eighth Chapter of the <Emphasis Type="Italic">Chāndogya Upanişad</Emphasis> vs. Śankara’s <Emphasis Type="Italic">Bhāşya</Emphasis>

The article offers a close reading of the famous upanişadic story of Indra, Virocana and Prajāpati from the eighth chapter of the Chāndogya-Upanişad versus Śankara’s bhāşya, with special reference to the notions of suşupti and turīya. That Śankara is not always loyal to the Upanişadic texts is a well-known fact. That the Upanişads are (too) often read through Śan-kara’s Advaitic eyes is also known. The following lines will not merely illustrate the gap between text and commentary but will also reveal an unexpected Upanişadic depiction of ‘dreamless sleep’ and ‘transcendental consciousness’. Suşupti is described here as ‘one step too far’, as a ‘break’ or discontinuity in one’s consciousness; whereas turīya is depicted positively, and surprisingly even in wordly terms. Unlike the third state of consciousness in which there is no ‘world’ nor ‘me’, and which is described through Indra’s character as ‘total destruction’ (vināśa); in turīya, the world ‘comes back’, or rather the ‘renouncer’ returns to the world. Sankara’s position, as far as the story under discussion is concerned, is radically different. For him, the Upanişadic story illustrates the continuity of consciousness in all its states. For him, the identification with merely one of the consciousness-states is an error (adhyāsa) which causes suffering. Consciousness prevails even in suşupti, and turīya has nothing to do with ‘coming back to the world’, since there is nowhere to come back from or to. Turīya, as seen by the Advaitin, consists of all the other states of consciousness together, or as K. C. Bhattacharyya puts it, ‘It is not only a stage among stages; it is the truth of the other stages’. The article is dedicated to Prof. Daya Krishna (1924-2007).     

Costs and recovery rates in the Dutch liquidation-based bankruptcy system

We present evidence on the efficiency of the resolution of financial distress in bankruptcy in The Netherlands. Direct costs average 16%, firm recovery 37% and bank debt recovery 80%. The direct costs are lower in larger firms and in firms with more bank debt. Costs increase with the time it takes to sell assets. Firm recovery is influenced by asset structure, capital structure and to a lesser extent Dutch legal variables. However, the opportunity to continue operations in bankruptcy is chosen by about half the firms and this has a positive effect on recoveries.