You are looking at 1 - 6 of 6 items

  • Author or Editor: Francisco Garcimartín x
Clear All Modify Search
You do not have access to this content

Francisco Garcimartín Alférez

You do not have access to this content

Francisco Garcimartín Alférez

You do not have access to this content

Francisco Garcimartín and Nuria Bermejo

This contribution offers a description of the theoretical debate about the protection of security rights and the extend of the preferential treatment they will enjoy in insolvency. Our main purpose is to analyse why secured creditors should be compulsory involved in the restructuring proceedings and provide good reasons for it. In this respect, this paper presents the main reasons for restricting or limiting pre-insolvency entitlements of secured creditors in order to meet the objective of restructuring proceedings and the limitations which should be imposed on them. These reasons are linked to the need to minimize the negative impact on reorganisation of procedural and substantive privileges granted to creditors by secured debt in order to achieve insolvency goals, specifically to maximize the value of the distressed company. For that purpose, this contribution is divided in four sections. After a brief introduction (section I), it defines the analytical framework and the problems that secured creditors may pose in insolvency proceedings, in general, and in restructuring proceedings, in particular - i.e., in the negotiations of a restructuring plans. Likewise, it presents the reasons which justify limiting their pre-insolvency entitlements (section II). The paper describes then the nature and extend of the limits imposed by the positive law, taking as a reference the approaches followed in the US (Chapter 11 of the US Bankruptcy Code) and in Europe (the Directive on Restructuring Frameworks), but making punctual references to other approaches in comparative law as well (section III). In particular, it focuses the attention on two main issues, that is, whether and under what conditions secured creditors may be affected by the stay, and whether these creditors can be “dragged along” by the restructuring plan - i.e., whether the plan can be crammed down upon secured creditors-. The paper finishes by outlining some concluding remarks (section IV).

You do not have access to this content

Francisco Garcimartín and Maria Isabel Saez

You do not have access to this content

Francisco J. Garcimartín Alférez and Sara Sánchez Fernández

In response to the financial crisis of 2008, several jurisdictions have laid down special resolution frameworks giving national authorities extraordinary powers to deal with failing financial institutions. This contribution describes the effects of such resolution tools on contracts entered into by the failing institution, including conflict of law aspects. In particular, it focuses on the specific case of close-out netting provisions and financial collateral arrangements, since one of the main consequences of the recent financial crisis has been the review of the privileged status that these instruments used to have. The EU legislation is used as an example of this change of paradigm, which has so far taken place only in relation to resolution scenarios but not for insolvency proceedings.

You do not have access to this content

Francisco J. Garcimartín Alférez and Sara Sánchez Fernández

The advances in technology over the past few years have deeply impacted the financial sector. While legal systems are still accommodating FinTech at the substantive-law level, the same task at the level of private international law proves to be even more challenging. The authors note that traditional private international law methodology is based on connecting factors which seek to anchor legal relationships to a particular State. FinTech, on the other hand, is essentially decentralized and delocalized; traditional connecting may thus not work. While the HCCH has already dealt with the first wave of technological challenges in the 2006 Securities Convention, especially distributed ledger technology (DLT) defies traditional approaches given its global reach, the lack of intermediation and the absence of central authorities. After a brief introduction to DLT, the authors consider selected issues concerning DLT in the financial sector from a private international law perspective, testing traditional Savigny’an approaches and arguing that a number of issues could benefit from uniform regulation. They focus on the law applicable to proprietary aspects of securities registered in blockchains and present the different connecting factors that may be considered for a choice of law rule. The Chapter then discusses token sales and the law applicable to smart contracts deployed in such sales. The authors contend that ultimately, any solution which is intended to be effective must be adopted at an international level, hence being highly relevant for the future work of the HCCH.