Materielle Konsolidierung bei Konzerninsolvenz

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Abstract: Substantive consolidation permits a court, in insolvency proceedings involving two or more business syndicates, to disregard the separate identity of each one in appropriate circumstances and consolidate their assets and liabilities, treating them as if they were held and incurred by a single entity. While substantive consolidation can be ordered by a US or Chinese court, despite an absence of direct statutory authority, German lawmakers have explicitly refused to adopt this kind of consolidation in their latest legislation on business syndicate insolvency. From a comparative legal perspective, the author of this study analyses the various arguments for and against the use of substantive consolidation in the US, Germany and China, and comes to the conclusion that the imposition of substantive consolidation in group insolvency can be justified by two principles firmly embedded in insolvency law: “efficiency” and “creditor autonomy”.