The position of shareholders in the restructuring proceedings of distressed companies: From a shareholders' veto power to their duty to enforce (<i>Aufopferungs‐</i> or <i>Duldungspflicht</i>) a restructuring plan
Bibliographic record
Abstract
Abstract This article addresses the problem of the position of equity holders in restructuring proceedings, tackling a new issue in the overall European scenario of insolvency law, where innovative rules have been introduced on this topic in Germany (ESUG), France (loi Macron), Spain (ley concursal), besides the new provisions laid down by the EU Preventive Restructuring Directive. Overall, these rules target the same outcome, while relying on different tools, namely, to overcome the veto power of shareholders in the enforcement of an approved and confirmed restructuring plan. Shareholders can in fact resort to their veto power pursuant to company law when dealing with structural operations having an impact on the property structure of a distressed company, that is, a debt‐equity‐swap. This article focuses on the rules governing the position of shareholders as laid down in Article 163, paragraph 5 and Article 185, paragraph 6 of the Italian Insolvency Law (IIL), in force since 2015, which will be probably amended in September 2021 by Articles 90 and 118 of the new Italian Crisis and Insolvency Code (ICC). The article ultimately provides a comparison with the legal framework in other European countries as well as in the EU Preventive Restructuring Directive. Many issues arise from the new Italian regulation, in particular regarding its field of application, its relationship and its coordination with company law and the protection of shareholders' property in the shares.
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How this classification was reachedexpand
Full frame machine prediction
Teacher imitationNot calibrated prevalence, not ground truth. Human validation pending. The Gemma side is a direct model label for every work in the frame, read from the title-only record. The Codex side is a classifier learned from the 10,348 direct Codex labels and calibrated to design-weighted sample rates; fields without enough sample support carry no Codex call. Candidate is the union of the two sides; consensus is their intersection. These outputs are machine_predicted_unvalidated and are not human labels.
Distilled classifier scores by category (both heads)
| Category | Codex | Gemma |
|---|---|---|
| Metaresearch | 0.009 | 0.024 |
| Meta-epidemiology (narrow) | 0.000 | 0.000 |
| Meta-epidemiology (broad) | 0.000 | 0.000 |
| Bibliometrics | 0.001 | 0.001 |
| Science and technology studies | 0.003 | 0.006 |
| Scholarly communication | 0.010 | 0.003 |
| Open science | 0.001 | 0.004 |
| Research integrity | 0.004 | 0.002 |
| Insufficient payload (model declined to judge) | 0.005 | 0.001 |
Machine scores (provisional)
The two teacher heads of the student model, read on this work. A score orders the frame for review; it never asserts a category, and the validation status ships verbatim with every row.
Baseline scores from an immature model (maturity gate not passed, 7 training rounds). Scores rank; they never assert a category.
score_only:v0-immature-baseline · verbatim from the scoring run: score_only means the number may rank works, and no category label ships from itClassification
machine, unvalidatedMachine predicted; a candidate call from one source (direct Gemma or distilled Codex), not a consensus.
How this classification was reached, model by model and score by score, is at the end of the page under "How this classification was reached".