Investment and Liquidation Incentives under Solvency Tests and Legal Capital

The European Union (EU) has been debating for several years whether to change from the legal capital regime as regulated under the Second Company Law Directive to a solvency test regime as applied in the USA, for example. Based on an analysis of direct compliance costs and capital maintenance systems in non-EU countries, the EU decided not to change the regulatory regime in the short term. This paper focuses on the indirect costs of these two regimes. The paper develops a model in which payouts are restricted by one of the two regimes and the equity holders have the choice between extending and liquidating the existing investments. I find that both regimes will create first-best incentives if their respective design parameters are properly balanced. Under a legal capital regime, however, first-best will be a random event, because accounting standards typically do not allow for the necessary interdepencies between the accounting for liabilities and investments. The advantage of a solvency test with respect to the implementation of first-best incentives diminishes if equity holders can misreport future prospects. Under the legal capital regime, misreporting incentives can be excluded by sufficiently conservative depreciation. A solvency test designed to achieve efficient decisions will always create incentives to overstate future cash flows.