Opportunism in the guarantee relationship
PhD student: Dr A.L. Jonkers
Promotors: Prof A.F. Salomons, Prof R.J. de Weijs
Duration: 1/1/2014 - 31/3/2017
PhD defence: Amsterdam, 17/1/2020
An in depth analysis of the legal treatment of guarantees and guarantor opportunism in Europe is needed in light of four developments: (1) the omnipresent but underexposed use of guarantees as a security instrument; (2) the one sided focus in the recent debate in the EU on guarantees on a single aspect: the protection of the guarantor as a weak party; (3) the continuing rise of complex international corporate group structures and the role and opportunism hazard of guarantees in these constructions; (4) the shift towards a more shareholder-oriented model of corporate law. The central question posed in this research is: Which legal approach should be taken in the European Union to curb opportunistic behaviour of the parties involved in the guarantee relationship? The research will consist of three main parts. Part I provides a theoretical framework for analysis of the guarantee relationship. Part II compares the regulation of the guarantee relationship in 3 national systems, and assesses the different approaches applying the notions from the theoretical framework. Part III will draw on the conclusions of both part I and II to analyse how the European Union should deal with opportunistic behaviour in the guarantee relationship.