Debt Resolution, Restructuring & Insolvency Law EAC Perspective

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1 Debt Resolution, Restructuring & Insolvency Law EAC Perspective Arusha, Tanzania August 6, 2012 Antonia Menezes Private Sector Development Specialist - Debt Resolution & Business Exit Investment Climate IFC l World Bank l MIGA 1

2 Roadmap Importance of Insolvency Reform Elements of Strong Insolvency Regime East Africa Common Market Perspective Image source: Grail Research EAC January

3 Newsflash South Africa Namibia The Road Traffic Management Corporation (RTMC) - "technically insolvent" Golden Lions Rugby Union (GLRU) of the reigning champions are hopelessly insolvent, both factually and commercially Roads Contractor Company (RCC) State owned subsidiary is unable to honor its financial obligations technically bankrupt Kenya Kenya Pipeline Company (KPC) Faces Sh4.6 Billion Bankruptcy Threat Tanzania Uganda Independent Power Tanzania Ltd (IPTL) Power Firm Put Under Receivership 600 former workers of the defunct Uganda Electricity Board (UEB) have tabled a bill of about Shs40 billion in terminal benefits from the bankrupt public enterprise 3

4 Value Destruction in Africa Country Aggregate value of NPLs (2008) Pre-reform recovery from insolvent companies Value destruction (2008) Kenya Nigeria Total Total Total 1,091,249, ,192, ,056,971 4,568,900,000 1,224,465,200 3,344,434,800 South Africa 6,988,000,546 2,403,872,188 4,584,128,358 Zambia 367,570,399 99,979, ,591,250 Total 13,015,720,191 4,053,508,812 8,962,211,379 4

5 Entrepreneurship is tied to exit as much as entry Business Exit Entry Growth 5

6 Why Insolvency Regimes Matter Minimize creditors risk, improve investment Improve recovery and enforcement of security Increase investor confidence Preserve business value of debtor enterprise Viable business continue as going concern Reduce time and cost for restructuring Increase stakeholder returns Increased entrepreneurship Added economic value Greater access to credit 6

7 Elements of Strong Insolvency Regime Public and Private Sectors Bank Regulators Governmental & Political State Secured Creditors Tax & other laws Mortgage laws Collateral laws Environmental, Company, Tariff & others Creditors Employees Contract/Commercial Labor laws Professionals Administrative Cultural & Social Insolvency System Institutional Courts Bankruptcy Commercial & Civil Enterprise Shareholders Directors etc Economic & Commercial Company laws Securities laws Other laws

8 Elements of Insolvency Reform Insolvency Practitioners Regulation Legislative Reform Informal Debt Restructuring (OCWs) 8

9 Legislative Reform Improves credit environment by creating more efficient regimes for: Banks and businesses to recover debts Businesses to leverage collateral Helps failed businesses to exit the market efficiently and effectively Returns assets and entrepreneurs to productive use as soon as possible Fast track options for SMEs Preserves jobs by improving the regulatory environment for rescuing viable businesses 9

10 Insolvency Practitioners Regulation Translate insolvency policy choices into reality Capacity building of insolvency professionals essential for efficient procedures Positive correlation between minimum qualification requirements and higher recovery rates Faster procedures and less costly IPs are key players in: Reorganization: preparation of restructuring plan and promoting the survival of viable companies Liquidation: efficient and prompt sale of assets, maximizing value Supervisory body Independent of individual practitioners Sets regulation standards and code of ethics that create confidence in the impartiality, transparency, and accountability of the profession Powers and resources to enforce standards and discipline 10

11 Out of Court Workouts (OCWs) Out of Court Debt Restructuring = Contractual agreement with creditors to change debtor s composition of assets and liabilities without judicial intervention Operational and financial restructuring of business OCW and Formal Proceedings An alternative Complement formal insolvency procedure Part of sequence in hybrid procedures Informal OCW Between debtor and creditors Enhanced Restructuring Contractual agreements enhanced by norms or statutory provisions Hybrid Procedure Involvement of judiciary/aut horities in the informal procedure Formal Reorganization Of viable business through the courts Formal Insolvency Liquidation through the courts 11

12 Effect of Successful Debt Resolution Regime 12

13 Why Does Insolvency Reform Matter for the EAC? Increasing investment investor risk on debt recovery FDI attraction and retention is a priority areas for development FDI inflows correlate inversely with the levels of risks associated with any country Foreign investors make credit and trade arrangements that minimize debt recovery risk Source: 4th EAC Development Strategy (2011/ /16) 13

14 Why does Insolvency Reform Matter for the EAC? Recovery Rates are Poor In SSA 14

15 The Time To Act is Now Status of Reforms of Member States The Republic of Burundi Burundi is currently in the process of reforming its Insolvency Law Kenya Insolvency law reform is continuing, with a draft Bill pending. Rwanda May 2009, Rwanda enacted a new insolvency law. Aimed at promoting and streamlining reorganization procedures, setting time limit and regulating insolvency practitioners. Currently drafting procedural guidance rules/notes Uganda Insolvency Law drafted and tabled. United Republic of Tanzania Government plans to table in Parliament a new law to regulate insolvency and bankruptcy issues in the country (reports). 15

16 Proposal: Uniform Principles/Model Law Burundi, Kenya, Rwanda, Uganda and Tanzania - undertake to strengthen and regulate the industrial, commercial relations of the Partner States to the end that there shall be accelerated, harmonious and balanced development and sustained expansion of economic activities... EAC wide incorporation of the United Nations Commission on International Trade Law (UNCITRAL) Model Law on Cross-Border Insolvency Cross-border insolvencies within EAC and outside Reconcile varied civil and common law jurisdictions Share standards for key actors and institutions in insolvency regime Effective implementation of insolvency systems with EAC Common Market initiatives Improve EAC credit and business climate by harmonizing and modernizing insolvency and debt-resolution practices 16

17 AFRICA ROUND TABLE 2012 Partnership with INSOL International and collaboration with private sector and IMF ART 2012 in Nairobi Around 18 jurisdictions expected civil and common law Goal: share experiences of insolvency reform around Sub-Saharan Africa and start agreeing best practice standards 17

18 Thank you 18