Chapter 8: Key preventive restructuring provisions: context, commentary, and conflict
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Chapter 8 examines the provisions of the PRD that have been subject to policy debates and some controversy, specifically concepts such as debtor in possession procedures; the imposition of a stay or moratorium to curtail enforcement actions (Article 6); majority rule for plan adoption binding creditors in a minority; (Article 9) confirmation with a cross-class cram-down against entire classes of dissenting creditors (Article 11); and the protection or priority of new and interim rescue financing (Article 17). This Chapter will present each key controversial PRD provision within the context of debates and discussions in the insolvency academy, within practice, and amongst policymakers, and will then be examined through a comparative analysis drawn from JCOERE Project country reports of the 11 Member States whose contributors have provided unique perspectives on these provisions from their jurisdictions. The taxonomy described in Chapter 6 will be utilised in this comparison. This Chapter will end with a tentative assessment of how the implementation of the PRD may or may not encourage the closer alignment and harmonisation of restructuring frameworks in the EU, and in turn support the effective creation of a Capital Markets Union.

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