THE collapse of Enron, the largest bankruptcy in American history, has rung out a banner year for American business failures. In Europe, the fallout from the Swissair and Sabena insolvencies continues. In the current global slump, more companies are likely to go under. Now is a perfect time to reconsider how to handle such failures: let them sink, or give them a chance to swim?
In America, bankruptcy has come to mean a second chance for bust businesses. The famous “Chapter 11” law aims to give a company time to get back on its feet, by shielding it from debt payments and prodding banks to negotiate with their debtor. It even allows an insolvent company to receive fresh finance after it goes bust.
On the other side of the Atlantic, when companies stumble, almost as much effort is spent in fingering the guilty as in trying to salvage a viable business. British and French laws, for example, can make a failing company’s directors face criminal penalties and personal liability. Moreover, bankers have the power, at the first sign of trouble, to push a company into the arms of the receivers. Some modest changes are afoot, however. Britain is considering moves that would bring its rules closer to America’s. New laws in Germany should also make it easier to revive sick companies, although trade unions still have their say.
But even with the arrival of the euro and moves towards a single financial market, going bust in Europe is a strictly local affair. Long before America had a single currency, the American constitution provided uniform bankruptcy laws, observes Elizabeth Warren of the Harvard Law School. Europe’s patchwork of national laws, according to Bill Brandt of Development Specialists, a consultancy, inhibits lending and makes it difficult to fix ailing firms.
Transatlantic insolvencies are even harder, as a Belgian-based software company, Lernout and Hauspie, discovered this year. Its American reorganisation plan was thwarted by a Belgian judge, who ordered a sale of the firm’s assets. As the European Union inches toward greater harmonisation, should it try to mimic America?
Critics of Chapter 11 think not. They argue that America’s bankruptcy system is wasteful, lets failed managers go unpunished, and gives some companies an unfair advantage. In Chapter 11, admittedly, lawyers and advisers gobble up fees, but a recent study argues that the fees are no larger than those for most mergers and acquisitions.
One common complaint, that managers enjoy the high life while creditors go begging, fails to stand up to the data from America’s previous wave of bankruptcies in the early 1990s. Stuart Gilson of the Harvard Business School found that more than two-thirds of top managers were ousted within two years of a bankruptcy filing. More troubling is that some American firms seem to enjoy second and third trips to bankruptcy court, cheekily termed Chapters 22 and 33. Some see this as evidence that, too often, they use Chapter 11 to keep running. But there is more to the story.
Seen and unseen
The difference between Europe and America, points out Professor Gilson, is the choice between two types of mistake, which economists call type I and type II errors. Both are familiar to any courtroom. Type I errors are caused by excessive caution: for example, the court that lets a guilty defendant go free. Type II errors result from excessive zeal: for example, the court that convicts an innocent who is wrongly accused.
America’s generous approach to bankruptcy creates type I errors. It occasionally revives firms that should be shut. For example, Eastern Airlines flew for years under Chapter 11, free of its rivals’ interest costs. Another airline, TWA, went bust three times before it was at last taken over.
Less visible are the failures of the European system, which are of the type II variety. Companies that might have been revived are prematurely put down, often amid fire sales. Like a negligent doctor, a strict bankruptcy system buries its mistakes. Ironically, this can work against Europeans’ oft-stated goal to preserve jobs; a company might be able to survive with reduced debt.
Given the relative merits of the two types of mistake, Europe’s steps towards a Chapter 11 regime should be praised. This is especially true since most of the (type I) costs in Chapter 11 are borne by private creditors and shareholders, not by governments. The European approach has frequently resulted in state subsidies, rather than in creditors taking it on the chin. Consider this year’s bankruptcy of Moulinex, an appliance maker, which the French government tried to prop up when creditors, exercising their legal rights, refused to negotiate.
The American system is far from perfect, however. It has failed to bring badly needed consolidation to the steel industry. Failed dotcoms also highlight the flaws, since many have sought to reorganise without much hope of ever producing profits. In general, however, more than nine out of ten companies entering Chapter 11 eventually liquidate—the lucky few that survive account for the most jobs and economic value.
Mr Brandt points out that the two strongest forces in a bankruptcy are money and revenge. In America, where failure has long been a routine part of the entrepreneurial culture, the emphasis is on money. European law tends to favour revenge. A pity that the different outcomes are so stark.