Collateral in Bankruptcy: The Limits of Protection of Secured Rights

Banks typically occupy a dominant position in bankruptcy proceedings involving borrowers, a fact underscored by the competing interests of various creditor classes. The distinction between secured and unsecured creditors, established in the pre-bankruptcy phase, does not grant an automatic right of separate satisfaction upon the commencement of proceedings; rather, such rights are contingent upon statutory requirements and judicial verification. This article re-examines the legal standing of creditors in their multifaceted roles - as secured creditors, pledge creditors, and counterparties in potentially avoidable transactions. Within this framework, particular focus is placed on the scope of the avoidance of pre-bankruptcy transactions (actio Pauliana), inconsistent criteria for recognising recovery rights, divergent interpretations of the legal nature of guarantee, and judicial inconsistency regarding the assessment of a bank’s ‘bad faith’. The article further explores the broader economic and legal implications of non-recoverable claims and argues for legislative reform and the harmonisation of judicial practice to enhance legal certainty.