Legislative Guide on Insolvency Law

Transcription

1 Legislative Guide on Insolvency Law Jenny Clift Senior Legal Officer United Nations December 16, 2009 Kiev, Ukraine

2 Legislative Guide on Insolvency Law Negotiated by 87 States, 14 intergovernmental organizations and 13 nongovernmental organizations Finalized and adopted by in June 2004 Endorsed by the General Assembly in December 2004

3 Purpose To inform national authorities and legislative bodies when preparing new laws and regulations or reviewing the adequacy of existing laws and regulations Focuses on the key issues to be considered in developing an efficient and effective legal framework for insolvency Aims to achieve a balance between: the need to address the debtor s financial difficulty as quickly and efficiently as possible the interests of the various parties directly concerned with that financial difficulty, principally creditors and other parties with a stake in the debtor s business, and public policy concerns, including employment

4 Examples of use of the Guide Information available to indicates the Guide has been used: In insolvency law reform efforts in at least: France, Georgia, India, Indonesia, Korea, Macedonia, Montenegro, the Netherlands, Serbia, South Africa, Spain As a key component of the methodology used by the World Bank for ROSC assessments By the World Bank Group Investment Climate Insolvency Technical Assistance Program And as a text book for teaching comparative insolvency law courses

5 Structure of the Guide Three parts: Part one: designing the key objectives and structure of an insolvency law Part two: core provisions of an insolvency law Part three: (currently being finalised) deals with treatment of enterprise groups in insolvency

6 Part one Identifies key objectives of an insolvency law Provide certainty in the market Maximize the value of assets Balance liquidation and reorganization Ensure equitable treatment of creditors Support timely, efficient and impartial resolution of insolvency Preserve the insolvency estate Provide transparency and predictability Recognize existing creditor rights Address cross-border insolvency Discusses various insolvency mechanisms, including both formal and informal, and institutional framework issues

7 Part two Deals with core features of an effective and efficient insolvency law. Six chapters address: 1. Application and commencement eligibility and jurisdiction, commencement criteria; 2. Treatment of assets on commencement insolvency estate, application of a stay, use and disposition of assets, postcommencement finance, treatment of contracts, avoidance proceedings, setoff, netting and financial contracts; 3. Participants debtor, insolvency representative, creditors; 4. Reorganization, including expedited reorganization; 5. Management of proceedings claims, priorities and distribution; and 6. Conclusion of the proceedings discharge and closure

8 Chapters Each chapter includes commentary and legislative recommendations The commentary identifies the key issues to be considered in developing an insolvency law and discusses and analyses the various approaches that can be taken The legislative recommendations indicate the manner in which the key issues should be addressed in an insolvency law The recommendations are not intended to be enacted as part of national law as such, but provide guidance on the content and approach of legislation