在经济下行的时候，原来一些质地不错的企业也会陷入困境。对于困境企业而言，通过破产重整焕发生机，也许是最后一根救命稻草；对于投资人而言，未来真正的赚钱机会，也将出现在更多、更复杂的破产重整项目中。今天，我想跟大家谈谈破产重整投资的趋势、挑战与未来。

一、重整投资的趋势

首先，我们来谈谈重整投资已经展现出的四个变化趋势。

第一个趋势，是从被动投资到主动投资。

什么是被动投资？以往一些破产项目中的重整投资人，往往本身就是破产企业的债权人，他们随着陷入危机的破产企业一起被困在了“水中”，不得不通过参与重整投资寻求最后的“上岸”机会，比较典型的就是一些作为困境企业债权人的AMC公司。

什么是主动投资？这几年里，逐渐有一些“岸上的人”也瞄准了重整投资领域。“岸上的人”，是与困境企业没有关系的外部投资人，他们没有受到困境企业的牵连，而是将重整投资视作一个宝贵的商业机会，主动参与其中。这样的“岸上投资人”，既包括产业投资人，也包括财务投资人。

In bankruptcy as in federal jurisprudence generally, to characterize something with the near-epithet of “federal common law” virtually dooms it to rejection.

In January 2020 we reported that, after the reconsideration suggested by two Supreme Court justices and revisions to account for the Supreme Court’s Merit Management decision,[1] the Court of Appeals for the Second Circuit stood by its origina

It seems to be a common misunderstanding, even among lawyers who are not bankruptcy lawyers, that litigation in federal bankruptcy court consists largely or even exclusively of disputes about the avoidance of transactions as preferential or fraudulent, the allowance of claims and the confirmation of plans of reorganization. However, with a jurisdictional reach that encompasses “all civil proceedings . . .

I don’t know if Congress foresaw, when it enacted new Subchapter V of Chapter 11 of the Code[1] in the Small Business Reorganization Act of 2019 (“SBRA”), that debtors in pending cases would seek to convert or redesignate their cases as Subchapter V cases when SBRA became effective on February 19, 2020, but it was foreseeable.

Our February 26 post [1] reported on the first case dealing with the question whether a debtor in a pending Chapter 11 case may redesignate it as a case under Subchapter V, [2] the new subchapter of Chapter 11 adopted by the Small Business Reorganization Act of 2019 (“SBRA”), which became effective on February 19.

Our February 26 post entitled “SBRA Springs to Life”^[1] reported on the first case known to me that dealt with the issue whether a debtor in a pending Chapter 11 case should be permitted to amend its petition to designate it as a case under Subchapter V,^[2] the new subchapter of Chapter 11 adopted by

State governments can be creditors of individuals, businesses and institutions that are debtors in bankruptcy in a variety of ways, most notably as tax and fine collectors but also as lenders. They can also be debtors of debtors, in their role, for example, as the purchasers of vast quantities of goods and services on credit. And they can also be transferees of a debtor’s property in (at least) every role in which they can be creditors.

We have noodled on the impact that the Supreme Court’s decision in Merit Management Group, LP v.

Whether because of, or in spite of, the proliferating case law it is hard to say, but the issues in, underlying and surrounding third-party releases in Chapter 11 plans just continue to arise with incessant regularity, albeit without a marked increase in clarity. We have posted about those issues here six times in little more than two years,[1] and it is fair to assume that this post will not be the last.