Traitement légal de la défaillance et gouvernance : une comparaison internationale

Significant changes in corporate governance may occur when firms face bankruptcy. First, as the worsening of performance becomes more and more obvious, stakeholders will modify their behavior towards the firm. Furthermore, once a bankruptcy procedure is filed (and especially in the case of reorganizations on which we focus), a new balance of power is established by the provisions included in each national bankruptcy law. The aim of this paper is to investigate the legal treatment of bankruptcy and its impact on corporate governance in a comparative perspective. For that purpose, we rely on a broad definition of corporate governance i.e. one which emphasizes not only the relation between top executives and shareholders but also takes into account the influence of all stakeholders on managerial discretion. This is particularly relevant for our research object because not only shareholders and top management but also creditors, customers and usually employees bear the consequences of bankruptcy. To understand the effects of bankruptcy on corporate governance, we first examine the insolvency codes of five countries (i.e. France, Germany, Great-Britain, Japan ant the United States). The stance of the law (rather favorable to the creditors or to the debtor) is discussed in relation to the legal tradition of each country. We then study the enforcement of the law, pointing to existing problems and current reforms.