Restructuring plan, distribution of the surplus value and the alternative between absolute and relative priority rule in the EU Directive on Preventive Restructuring Frameworks
Abstract: The article delves into the issue of the distribution of the surplus value created through a restructuring plan in light of the recent EU Directive on Preventive Restructuring Frameworks and of the alternative between the absolute priority rule (“APR”) and the newly conceived relative priority rule (“EU RPR”). The article examines these two rules and explains the reasons why the EU RPR (which is very different from the “US RPR”) appears to be a problematic solution in corporate restructuring. On top of that, the article shows that the EU RPR lacks a clear theoretical justification. One of the main reasons why the EU RPR was introduced in the Directive alongside the APR is that the APR is thought to make it difficult to award value to the shareholders of SMEs. The article illustrates why the EU RPR is not a proper solution to such a problem. Instead of the EU RPR, the article suggests a different approach, which complies in principle with the APR, but at the same time allows certain exceptions when justified in specific circumstances, under the supervision of the court (public regulation).
Summary: 1. Introduzione. – 2. La distribuzione del (plus)valore ricavabile dal piano di ristrutturazione fra APR, EU RPR e best interest of creditors’ test (BIT). – 3. Genesi della EU RPR. – 4. Critica della EU RPR. – 5. Possibili inefficienze della EU RPR. – 6. Sul concetto di “valore di riorganizzazione” (cenni). – 7. Conclusioni.
Keywords: Restructuring plan — distribution problem — surplus value — absolute priority rule — relative priority rule — cross-class cram-down.
