Failing Firm Defense: General Ideas About the Figure’s Regulation in Compared Law and it’s Appliance in Colombia

By Diana Hernandez (Universidad Externado de Colombia)

The failing firm defense is an Anglo-Saxon creation conceived almost a century ago. This conception has been conceived in order to support the fusion integration of companies in financial crisis with others in solving situation, even if its operation from the competence defense right perspective, generates dominance situations, or is objected by the fair competence authorities.

Not only the United States of America but the European Union elicited doctrines, jurisprudences, and statements that have embodied the figure of failing firm defense, but its treatment was not pacific or simple. The reach of these has generated significant controversies regarding concepts and “traditional” regulations such as monopolies, abuse of domain position, and limits between judicial liquidation, corporate reorganization and the principle of conservation of companies.

Despite the importance of this figure as well as the scenario where it can be applied, there is no pronouncement in Colombia about the opportunity, the use and the boundaries of this figure. For this reason, the aim of this study is to present the current situation of the failing firm defense at the systems in which it is regulated, in order to review its effectiveness as well as provide tools of analysis that allow a potential study and development of this topic in our country.

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