BSA SERBIAN REGULATORY BODY

Transcription

1 BSA SERBIAN REGULATORY BODY - legislative gaps, practical issues, proposals for solutions - Vesna Gaćeša Director Kiev, December 2009

2 SERBIA

3 SETTING UP OF BSA Reform of insolvency legislation in commenced by the enactment of the new Law on Bankruptcy Proceedings (LBP) in 2004, effective as of , which provided for the setting up of the Bankruptcy Supervision Agency (BSA) BSA state agency under the cap of the Ministry of Economy and Regional Development; established by the Law on Bankruptcy Supervision Agency and became operative as of entrusted tasks

4 BSA ACTIVITIES AND RESPONSIBILITIES 1. Issues, suspends, renews and revokes licenses, 2. Organizes and conducts professional licensing exam, 3. Maintains a directory of licensed bankruptcy administrators, 4. Supervises the operations of bankruptcy administrators, 5. Collects and processes statistical and other data relevant for bankruptcy proceedings, 6. Advises National Standards for Administering the Bankruptcy Estate and the Code of Ethics, 7. Performs other tasks, stipulated by the Law and the Statute.

5 REGULATORY FRAMEWORK Besides the law, regulatory framework for the successful operation of BSA consists of: 1. Regulation establishing National Standards for Administering the Bankruptcy Estate 2. Code of Ethics for Bankruptcy Administrator 3. Regulation on the Bases and Criteria for Determining Final Bankruptcy Administrators Award and Reimbursement of Actual Expenses 4. Regulation on Bankruptcy Administrator Licensing Exam 5. BSA Tariff

6 A FOUR-YEAR RETROSPECTIVE Until 2007, focused on setting up qualifications for bankruptcy administrators (BA) through: 1. Organizing and conducting professional licensing exam, issuing bankruptcy administrator licenses 2. Around 400 licensed administrators 240 thereof active Since 2008, the concept of work improved significantly - Monitoring BAs throughout all cases they are appointed to Shift of focus on most important activities: - Supervision over the work of BAs and monitoring the development of the BA profession

7 REGULATORY DEFICIENCIES: LBP Supervision procedure not specified supervision by reviewing the submissions the BAs are required to provide? Lack of criteria for license renewal conscientious performance of BA s duties? Lack of criteria for license revocation nonconscientious performance of BA s duties? Many other issues undefined, etc.

8 LEGAL GAPS : BSA LAW Lack of formal legislative framework for performing the supervisory function: - BSA supervises by reviewing a BA s documents LBP and BSA Law do not contain provisions regulating: - manner of performing supervision over BA work, - types of measures and sanctions that may be imposed on a BA, based on a conducted supervision - disciplinary procedure where measures and sanctions are imposed Main objective of BSA is to set clear and accurate criteria for the performance of supervisory tasks

9 MAIN QUESTION: WHAT IS SUPERVISION? Professional supervision is the control that the BSA carries out as a regulatory authority, with a view to ensuring that BAs act in a lawful manner and to improving the BA profession, and it primarily refers to the control of compliance of BAs with the Law on Bankruptcy Proceeding, National Standards and Code of Ethics

10 HOW DOES THE BSA SUPERVISE? Reviews the reports and other documents that BAs are required to provide Conducts annual field inspections by visiting BAs offices Acts upon complaints against BAs actions

11 FIELD SUPERVISION-WHAT IS IT? BSA s Supervisors: Visit bankruptcy administrators offices Review case files selected on a random sampling basis cases that have been under the administration for more than 2 years, those with high asset value, where supervisors identified certain deficiencies while reviewing and analyzing the reports and other documents Analyze selected case files of the BA Compile a report, that is, the Conclusion Assessment of bankruptcy administrator performance

12 FIELD SUPERVISION - RESULT Conclusion- final report with the assessment of performance, compiled based on completed individual check-lists; the assessment shows the overall performance of a BA, regardless of the number of cases examined presents the average of scores obtained from individual check-lists. Conclusion - professional evaluation; each Supervisor has a discretion to assess BA performance assigned to him, but the general criteria for performance assessment is set jointly by all Supervisors.

13 BSA ACTIONS UPON THE CONCLUSION Isolated fault - basis for an order requiring the BA to remedy the fault, or an extreme violation requiring the initiation of a disciplinary procedure. Repeated fault - repeated throughout cases and it presents the basis, in almost all cases, for initiating the disciplinary procedure; indicates the lack of professional competence or a continuing misconduct of BAs. Systemic fault made by majority of BAs - BSA passes the directive specifying the conduct in a specific situation or advises a new national standard, organizes additional compulsory education seminars for BAs.

14 FIELD SUPERVISION IN 2008 In order to conduct field supervision, it was necessary to prepare: The priority list of BAs to be supervised in 2008 compared to the total number of BAs Checklists for supervision Notification to BAs on the intended field visit, and to plan field visits

15 PRIORITY LIST OF BANKRUPTCY ADMINISTRATORS During 2005, 185 licenses were issued The priority list of BAs identified for supervision constituted only those administrators that were appointed by the court, have been engaged in cases and that had active cases at the time. From May to October 2008, 97 field visits were conducted in 21 towns in by 5 BSA supervisors, where the total number of cases examined was 151.

16 SUPERVISION CHECKLISTS Inspection of operations and office of the BA Bank accounts monitoring Assets inventory List of claims and excluding requests Expenses of bankruptcy proceedings Recovery of debtor s claims Sale of assets A form Conclusion on supervision with the assessment of BA s performance: full compliance, substantial compliance, partial compliance and non-compliance with the Law, NS, CoE

17 FIELD SUPERVISION RESULTS For the purpose of analysis - 2 rating categories Category I - BAs receiving the rating of full or substantial compliance 60% of the field visits Category II - BAs receiving the rating of partial compliance or non-compliance - 40% of field visits

18 C O N C L U S I O N Such manner of work ensured the following: o Impartial conduct of individual supervisors and the BSA as a whole o Uniform conduct of supervisors o Unique criteria were applied, which were developed by the BSA supervisory staff o Information and transparency of conducting supervision o Publicity of the supervision procedure and the decision-making process

19 C O N C L U S I O N o No disciplinary procedures against BAs were initiated nor sanctions imposed on those BAs whose performance was assessed as partial compliance and non-compliance o WHY? o No legal basis for initiating disciplinary procedure, nor more types of sanctions defined

20 REGULATORY REFORM: LAW ON BSA New Law on Bankruptcy and amendments to the Law on BSA to be adopted by end 2009 specify supervisory work as professional; Specify BSA s actions in carrying out professional supervision and disciplinary procedure; determine the type of administrative act enacting a decision; define the types of sanctions - reprimand, public reprimand, monetary fine and de-licensing; provide legal basis for passing the Regulation on Supervision

21 PURPOSE OF SUPERVISION To ensure high level of professional conduct of BAs To protect the integrity of bankruptcy proceeding, To ensure that BAs act in a lawful and conscientious manner, To develop the bankruptcy administrator profession, and To protect the interests of all participants in the proceeding The main purpose of the supervision is to ensure the development of the profession, improve the image of the insolvency administrators and turn negative public perceptions into the positive ones.

22 THE GOAL OF BSA AS A REGULATOR It is very important to understand that the priority goal of the BSA in conducting professional supervision is to raise the level of professional skills of BAs and ensure the quality of their work, as well as to lever the professional standards on a higher level, rather than to eliminate insolvency administrators, except where serious and essential faults were made.

23 LESSONS LEARNED 1. Bankruptcy administrator - qualified, skilled professional, a person with integrity, capable of administering bankruptcy proceedings 2. A state regulatory body is necessary 3. Clear and accurate powers of the regulatory body in carrying out professional supervision, with several types of sanctions and a disciplinary procedure 4. A solid and transparent institutional and regulatory frameworks are necessary Without an efficient insolvency system, there is no effective protection of creditors rights

24 ASSISTANCE TO SERBIA AND THE BSA Comprehensive assistance to was provided by the consultants and experts from international donor organizations, such as: World Bank EBRD USAID GTZ, and others The BSA staff were provided assistance by colleagues and experts in insolvency field worldwide, members of IAIR and INSOL EUROPE, which was all applied by the BSA staff by way of tailoring such experiences to the needs and peculiarities of, and all this with a view to creating greater legal certainty for creditors.

25 THANK YOU FOR YOUR ATTENTION! VESNA GAĆEŠA - DIRECTOR BANKRUPTCY SUPERVISION AGENCY Tel Fax , Kneza Mihaila St, Belgrade Republic of Visit the official BSA website at :