Samenvatting

In this article it is argued that bankruptcy courts really can help in preventing distressed companies to become bankrupt. However, the use of judicial reorganization procedures (moratoria) should then be abolished. By nature judicial reorganization instruments invoke polarization of debtors and creditors in fact making the (financial) problems of distressed companies worse. A new system for reorganization and dispute settlement should be introduced, at least in the Netherlands, in which insolvency judges act as mediators in confidential negotiation sessions between companies and their creditors. These negotiations should take place at an early stage of the insolvency process, in to be established (neutral) ‘Turnaround Chambers’ of district courts, and should be accompanied by a holistic business turnaround process taking place at the company at stake. By introducing this alternative system the dramatic failure rate of current judicial reorganization procedures (between 73%-95% in the Netherlands) can and will be reduced dramatically.