Good practices in Insolvency practitioners regulation

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1 Good practices in Insolvency practitioners regulation June 8-15, 2011 World Bank Group Investment Climate Restructuring & Insolvency Team Andres F. Martinez

2 Roadmap for session Introduction importance of IP s and IP s system 1) Role of IP s international standards 2) Leading practice examples 3) Observations regarding current system of IP s in Ukraine 4) Suggestions for creating an Effective Regulatory Environment for Insolvency Administrators 5) Discussion 2 4 Jostarndt, Philipp and Zacharias Sautner. Out-ou-Court Restructuring verus Formal Bankrutpcy in a Non- Interventionist Bankruptcy Setting. Review of Finance (2009), 1-46.

3 Introduction Importance of insolvency administrators They translate to reality the policy choices made by the insolvency Law. Key players in Reorganization in the preparation of reorganization plan and to promote survival of viable companies and in Liquidation to efficiently and speedy sell assets maximizing value. Significant relevance in determination of estate and its administration and/or liquidation; Crucial information searching, analyzing and sharing. ( eyes of court ); 3 Role in assisting the court in procedural matters.

4 Role of the Insolvency practitioners Principle C6.1 In liquidation proceedings, management should be replaced by an insolvency representative with authority to administer the estate in the interest of creditors. (World Bank Principles) Main liquidator s function is to collect and realize the assets and distribute the proceeds among creditors by way of dividend. What is it expected: knowledge, relevant experience and personal qualities such as integrity, impartiality, independence and good management skills. World Bank Principles for Creditors rights and insolvency can be found at: Jostarndt, Philipp and Zacharias Sautner. Out-ou-Court Restructuring verus Formal Bankrutpcy in a Non- Interventionist Bankruptcy Setting. Review of Finance (2009), 1-46.

5 Leading practice examples Competence and Integrity of Insolvency Administrators [D8] The system should ensure that: Criteria as to who may be an insolvency representative should be objective, clearly established and publicly available; Insolvency representatives be competent to undertake the work to which they are appointed and to exercise the powers given to them; Insolvency representatives act with integrity, impartiality and independence; and Insolvency representatives, where acting as managers, be held to director and officer standards of accountability, and be subject to removal for incompetence, negligence, fraud or other wrongful conduct. 5

6 Leading practice examples (cont) What does a leading practice economy have? Qualification requirements (educational standards, relevant experience and personal skills). Examination and licensing system Transparent appointment and right for creditors to remove IP Continuing education programs Strict supervision Code of Ethics Exclusions (i.e. Conflict of interest provisions) 6

7 Leading practice examples (cont) UNCITRAL Recommendations The insolvency representative (part two, chap. III, paras ) Qualifications 115. The insolvency law should specify the qualifications and qualities required for appointment as an insolvency representative, including integrity, independence, impartiality, requisite knowledge of relevant commercial law and experience in commercial and business matters. The insolvency law should also specify the grounds upon which a proposed insolvency representative may be disqualified from appointment. 7

8 Leading practice examples (cont) Also can be taken into account: High income economies. Other countries have made similar effort (i.e. Serbia s Manual on the National Standards and Code of Ethics for Bankruptcy Administrators). EBRD Insolvency Office Holder Principles Doing Business report 8

9 EBRD Principles cover Qualifications and Licensing Appointments Review of Appointments Removal and Resignation Replacement Standards of Conduct Reporting and Supervision Regulatory and Disciplinary Functions Remuneration Insurance 9 Code of Ethics

10 Minimum qualifications and recovery rates Capacity building of insolvency professionals is essential to efficient insolvency procedures Positive correlation is evident between minimum qualifications requirements and higher recovery rates: Faster procedures and less costly 10

11 Current system Present system does not establish criteria as to who may be an insolvency practitioner, or prescribe standards of competence, behavior or continuing professional development. Current system does not specify the restrictions on an individual s occupation which would disqualify his application for a license i.e. there are not incompatible occupations from obtaining a license or conflict of interest provisions. Lack of effective supervision may raise issues in some cases. 11

12 Current system (cont) Lack of specificity regarding office requirements (storage capacity). No requirement of relevance to professional experience. No requirement that the individual applying for a license be of good character and reputation. Lack of code of ethics and professional standards. Difficulties for IP s to adapt in a system that regulates them poorly. 12

13 Suggestions to discuss to improve the system, based on leading practices Should the IP s profession be regulated in a different way? Why would regulation of the profession be beneficial for existing IP s? If profession is regulated, other policy issues have to be decided: Should the new licensing system of insolvency representatives include an examination? If so, what body should assist the regulator by administering the exam? 13 Should existing liquidators be exempted from all or part of any required examination on the basis of their experience? (Grandfathering). How should the regulator monitor the performance of insolvency representatives to ensure standards and ethics?

14 Some policy questions If profession is not regulated some aspects can still be improved, for example: The development of a list of known IP s whose training and experience are considered by a body authorized to assess such matters ; Introducing a requirement that all IP s be selected from a list of known IP s; The promulgation of guidelines to be followed by the court in terms of appointment, etc. Possibilities to include qualification requirements. Should mala praxis insurance be contemplated? (e.g. Canada). 14

15 Some policy questions (cont). If the profession is regulated, a decision needs to be made on where the provisions establishing and regulating the new profession or imposing new requirements for IP s be set out? Alternatives are: In the law itself; In regulations (by-laws); In codes or guidance issued by the regulator 15

16 What happens when access to IP s profession is not restricted? The profession gets devaluated and there is reputational risk for good IP s grandfathering principle. If administrators or liquidators are not well equipped to handle insolvency cases, they may not realize the highest value or may reduce the remaining value in a hopeless search for the ideal buyer. When mechanisms for appointment are unclear transparency issues may be raised. 16 Time and cost of the procedures and, therefore, recovery rate tend to be diminished.

17 Draft law that will be submitted to Parliament may introduce positive changes in the following areas Qualifications Appointment in insolvency cases Resignation, removal and replacement of IP s Reporting and supervision Regulatory and disciplinary functions 17

18 THANK YOU Questions? Andres F. Martinez: 18

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