Jonatan Schytzer

• Restructuring: Towards an Improved Viability Test – funded by Wallander, Hedelius & Browaldhs Stiftelse (2024–2026)
• The Environment in Bankruptcy – funded by Torsten Söderbergs stiftelse (2022–2024)
  • Monograph in press
  • Expert for the World Bank in working group on climate change & insolvency law
• Senior lecturer, private law 2022–
• Lecturer, 2020–2022
  • Teacher of the year 2021
• Doctor of Law (D.J.S.) 2021
  • The Rise of the Claim in Insolvency Law (award-winning, Insolvensrättsligt forum 2022)

Doctoral Thesis – The Rise of the Claim in Insolvency Law

The question of when a claim arises is quintessential in Swedish insolvency law. The claim has to have arisen before a certain critical time point to be included in insolvency proceedings, a composition (in a reorganisation) or a debt relief. The question of the claim has arisen before a critical time point is also used concerning recovery to the insolvency estate, set-off, and to determine whether a post-commencement claim exists. The thesis delves into the question of the rise of the claim in Swedish insolvency law.

In recent years, there have been numerous cases from the Supreme Court of Sweden concerning the question of the rise of the claim. In several of these cases, the Court has stated that the rise of the claim mainly depends on the purpose of the specific provision. This way of reasoning is called functionalism in the thesis. Functionalism creates an openness towards arguments and principles relevant to the specific provision. Accordingly, principles and arguments of insolvency law become important to determine if a claim has arisen as regards a provision within insolvency law. However, there are other ways of approaching the issue. For example, the doctrine of conditions and the principle of the substantial ground of the claim have also been used in the case law from the Supreme Court of Sweden. To determine whether a claim has arisen, the doctrine of conditions opens the door for an assessment based on the rules on the formation of contracts, while the principle of the substantial ground mainly relies upon the law of obligations. Insolvency law and the law of obligations are thus intertwined in the question of when a claim has arisen.

The different ways of reasoning are studied in detail in the thesis. A comparison is also made between their respective structure, as well as the different normative assessments they rely on. How the Supreme Court of Sweden superordinated functionalism in NJA 2009 s 291 is also studied. The study of the different ways of reasoning forms the basis for the main part of the thesis and its topic: The rise of the claim regarding the critical time points within insolvency law.

Interdisciplinary Research Collaboration

Since the winter of 2019/2020, I have engaged in an interdisciplinary collaboration with Olof Wadell, who is now a PhD and Senior Lecturer at the Department of Business Studies, Uppsala University. So far, the collaboration has mainly resulted in an article, “(Konkurs)gäldenärens avtal från ett företagsekonomiskt perspektiv” (“Executory Contracts from a Business Studies Perspective”) as well as a multi-year research grant from Jan Wallander’s & Tom Hedelius’ Foundation and Tore Browaldh’s Foundation (Handelsbanken). This grant funds 70% research for both myself and Olof during the period July 1, 2024, to June 30, 2026.

In the aforementioned article on executory contracts, we adopt an interdisciplinary approach to examine whether the bankruptcy estate should have a mandatory right to enter the debtor’s contracts by considering both business research on business relationships and previous legal research. Historically, legal research has suggested that the potential counterpart of the bankruptcy estate is sufficiently protected by receiving payment. However, business research on business relationships shows that many other aspects, beyond performance (i.e., payment), play a role for companies. By applying interorganisational theory, we have demonstrated that the relationship between the debtor and the debtor’s counterpart and the bankruptcy estate is relevant in questions regarding executory contracts. This means that several additional considerations must be taken into account in deciding whether the bankruptcy estate should have a mandatory entry right.

In the ongoing research project, “Corporate Restructuring: Towards a More Developed Viability Test”, we are studying the viability test, which was made more stringent through the new Corporate Reconstruction Act. The test aims to ensure that only companies that can realistically be restructured are allowed into the process. This should be seen in the context of the high failure rate–up to half–of restructurings under the previous law. Although the bar has been raised, it remains highly unclear how courts should assess a company’s viability. As a result, there is a risk that the viability test may not function as the intended screening mechanism.

This project aims to further develop the viability test to generate new knowledge that can reduce the failure rate of corporate reconstructions. One assumption in the project is that today’s restructuring officers already possess substantial practical knowledge regarding which companies can be successfully restructured. Therefore, we will interview about twenty restructuring officers to gain insights into this knowledge and collect data on reconstructions carried out so far, focusing on, among other things, how companies have argued in both the reconstruction application and the plan that the viability test is met. The project will also include comparative studies of U.S. law, where a viability test has long been in place. We will also utilise business theory to determine what makes a company successful. We aim to publish our research findings in a Swedish journal, an international journal, and an international journal focused on market economics.

VAT and Insolvency

Following my dissertation, I collaborated with Associate Lecturer Mikael Ek at Uppsala University, resulting in two peer-reviewed articles on VAT and insolvency. The articles focus on how VAT claims should be classified in bankruptcy, particularly following new cases from the Court of Justice.

Festschrift Möller

In 2024, I contributed to and was the lead editor of a Festschrift honouring Professor Emeritus Mikael Möller. My contribution addressed the bankruptcy exemption in the Swedish implementation of the Transfers of Undertakings Directive, questioning whether it applies to restructuring via bankruptcy, considering recent EU court cases.

The Environment in Bankruptcy

Since 2022, I have been conducting a research project on the environment and bankruptcy. The project is funded by the Torsten Söderberg Foundation (two years, 75. The project takes its starting point in the societal issue that media coverage has highlighted in recent years: numerous individuals and companies have profited at the expense of the environment. These actors have undertaken waste management responsibilities but, instead of complying with regulations, have dumped toxic waste on private land and near water sources. Waste has been handled so recklessly fires have broken out at waste facilities. The former Minister of Environment and Climate, Bolund, labelled these actors “waste gangsters”.

Some of these actors have received long prison sentences and been ordered to pay damages. The problem, however, is that in most cases, neither the individuals involved nor their companies have the funds to cover environmental remediation costs. These companies have been declared bankrupt, effectively circumventing the environmental law system, which operates on the “polluter pays” principle. In these cases, no resources are available for environmental remediation. One could say that the environment itself has been declared bankrupt. The project’s aim is to explore how the “polluter pays” principle can be enforced, even if the polluter goes bankrupt.

The project will result in a monograph, which is currently being in press at Norstedts Juridik. This monograph examines three case types: fuel stations, waste facilities, and mines. A common feature of these cases is that, from the outset, latent environmental liabilities arise that will require remediation if the operator goes bankrupt. To find solutions to ensure that the polluter pays, even in bankruptcy, I deemed it appropriate to investigate both the existing regulatory framework (to identify its shortcomings) and what should be in place.

The project has also generated an article, “What If Polluters Cannot Pay? A Study of the Swedish Mining Bankruptcies.” This article summarises some of the key conclusions from the monograph for an international audience. It was inspired by an invitation I received to present at a conference organised by the Netherlands Association for Comparative and International Insolvency Law (NACIIL) in Utrecht in June 2024. NACIIL brings practitioners and scholars together in the Netherlands and hosts an annual conference featuring selected international speakers. For this conference, I was invited along with Michael Ohlrogge, a researcher from New York University who is considered one of the leading U.S. scholars on environmental and bankruptcy issues. Contributions from myself, Michael, and a number of national scholars and practitioners were published in the anthology “Insolvent Polluter Still Pays’ Principle?”

Through my Environment in Bankruptcy project and my international research collaboration (see below), I was also invited to participate in a project on climate change and insolvency law. The project was organised by the World Bank, INSOL International (an organisation representing over 12,000 insolvency professionals globally), and the International Insolvency Institute (which also brings together insolvency professionals worldwide). Twelve experts worldwide participated in the project, meeting in Washington, D.C., in February 2024. Like the other experts, I had the opportunity to present my research at the World Bank headquarters, where we discussed connections between climate change and insolvency law and how insolvency law could be modified to promote a green transition. This project will generate policy recommendations.

International Research Collaboration

Since 2018, I have attended and occasionally presented my research at the academic conference of INSOL Europe. I am also a member of INSOL Europe, which is part of INSOL International. Since 2022, I have been a board member of the Younger Academics Network of Insolvency Law (YANIL), a subdivision of INSOL Europe. YANIL brings together over 150 PhD candidates, postdocs, and other early-career researchers in insolvency law.

Every year, YANIL organises a workshop where around ten researchers present and discuss their work. I have been involved in organising these workshops in Dubrovnik (2022), Amsterdam (2023), and Naples (2024). Within the board, we also organise three to four webinars per year, for which I am primarily responsible. Additionally, we award an annual prize for the best publication in insolvency law.

Through my international network, I was invited to write an article, “The Swedish Implementation of the EU Directive on Preventive Restructuring: Fewer but More Successful Restructurings?”. This article examines how Sweden implemented the restructuring directive and is part of a series on how EU member states have implemented the directive. The article has been peer-reviewed.

Additionally, my research collaborations have led to numerous invitations to present my work (see further below). Through my international network, I was invited to take a research sabbatical at Aarhus University during my dissertation period. I was also included in the World Bank project mentioned above.

Presentation of Research (International and National)

To date, I have presented my research about 40 times, with around 30 of these presentations occurring post-dissertation. These presentations have taken place in various forums and for diverse audiences, including conferences, seminars, law firms, and professional courses. National interest in my dissertation has been substantial, and the Environment in Bankruptcy project has also established me as a sought-after researcher internationally. Notably, this includes participation in the World Bank project, the conference in Utrecht in June 2024, and delivering the keynote speech at the Bob Wessels Insolvency Law Collection event in Leiden in 2023. It was also a unique experience to record a podcast for INSOL ERA.

Presenting and discussing my research questions publicly is something I highly value, as demonstrated by the number of presentations I have conducted. I believe engaging in dialogue and maintaining visibility is essential to reach a broader readership as a researcher. Engaging with practitioners also enhances my ability to identify practical issues, structure my research, and refine my arguments. For example, in May 2024, I participated in an experience-sharing event organised by Botkyrka Municipality. The event brought together environmental inspectors, officials, and politicians from municipalities affected by waste-related crimes. This opportunity enabled me to engage directly with environmental inspectors, municipal directors, and policymakers on issues such as property owners' responsibilities under current regulations while gaining insights into how stricter liability could prevent certain types of schemes that municipalities have faced.