Published: 2023-10-05

The Polish Paradigm for the Solvency Test: a Tool for the Administration of an Agency Conflict between the Members of a Board of Directors of a Simple Joint Stock Company and its Creditors

Paweł Ochmann

Abstract

The new provisions which have come into force to regulate Polish simple joint stock companies (“the PSA Regulation”) have introduced unprecedented changes and new solutions into the Polish legal system. The withdrawal of the idea of a company’s initial capital, which was hitherto perceived as the traditional means to protect creditors, has raised doubts concerning the potential infringement of creditors’ rights. The situation of creditors may be examined from the point of view of agency theory, which may be applied in the context of the economic analysis of law. In the light of agency theory, we may venture a claim that there has been a rise in agency conflicts between simple joint stock companies and their creditors. The aim of this paper is to verify this claim and clarify the nature of agency conflicts arising between the members of a PSA’s board of directors and its creditors. I will also assess the usefulness of the solvency test as a tool for the administration of such a conflict. To do this, I will examine the agency conflict and the legal nature of the Polish simple joint stock company and the institution of the solvency test. The Polish legislator’s intention was to make the solvency test the mechanism securing protection for PSA creditors. In the subsequent part of the article, the solvency test will be confronted with the consequences which have been observed to arise in agency conflicts. In the final part of this article I apply my own definition of “the administration of an agency conflict” to consider whether the solvency test instituted in Poland is a useful tool for the resolution of such conflicts.

Keywords:

simple joint stock company, the solvency test, agency theory, protection of creditors, economic analysis of law

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Citation rules

Ochmann, P. (2023). The Polish Paradigm for the Solvency Test: a Tool for the Administration of an Agency Conflict between the Members of a Board of Directors of a Simple Joint Stock Company and its Creditors. Zeszyty Prawnicze, 23(3), 185–224. Retrieved from https://czasopisma.uksw.edu.pl/index.php/zp/article/view/13251

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