Subordinación contractual relativa y marcos de reestructuración preventiva

Abstract

This doctoral thesis focuses on contractual subordination and its legal regime in the context of the implementation process of the Preventive Restructuring Directive. This thesis starts by addressing the fact that despite the relevance that contractual subordination has in many capital structures of Spanish companies, its lack of legal recognition by the Spanish Insolvency Act results in serious deficiencies that negatively affect the credit market and its participants. This circumstance is particularly negative if we consider that contractual subordination operates as a mechanism for the protection of credit rights of lenders that goes beyond the rule of universal patrimonial responsibility of the debtor (article 1911 of the Spanish Civil Code) and the in rem security regime set forth in the Spanish legal system. Pursuant to the contractual subordination, creditors define their position in the capital structure of the common debtor and the ex ante value of their credits: the creditors through the contractual subordination determine the ranking and the return of their credits. In other words, in principle, the higher the ex ante value of the credit, the less risk and, therefore, the lower return and, vice versa, the lower the value, the higher the risk and the return...