The Myth of the Optimal Capital Structure and the Dogma of Creditor Protection

Abstract

This paper aims to reassess the dogma of creditor protection in light of the corporate finance principles and theories. To this end, I set forth two methodological premises to reach a substantive conclusion on the optimal creditor protection strategies. First, I draw a double-layered taxonomy of classes of creditors; second, I underscore the importance of legal systems and the statutory allocation of powers and authority on creditor-sensitive corporate decisions. The corporate finance literature shows that (1) debt matters for the firm’s value maximization and governance and (2) the optimal capital structure is influenced by various determinants. Creditor protection and debt governance serve as determinants of financial behaviour. Legal strategies can positively or negatively determine the cost of capital. Against this framework, I argue that ex ante corporate law techniques of creditor protection hamper firms’ financing maximization, whereas ex ante contractual arrangements bolster optimal capital supply. Ex post creditor protection is applicable only to distressed firms and has positive effects on capital structure when it involves directors, whereas it is rather cumbersome and unjustified when it impinges upon stockholders. Alternative, non-corporate law techniques may efficiently outperform strategies based on unlimited shareholder liability. I conclude that, while creditor protection techniques are a function of the interplay between legal environment and the specific features of each class of creditors, the case against ex ante corporate law, and toward ex ante contractual strategies, is substantial. Corporate finance forces should drive the legal design and assessment of this function.