Elements of a Regulatory Framework
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- Egbert Harvey Shelton
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1 Elements of a Regulatory Framework Presentation:- World Bank Group International Finance Corporation June 2011 Ukraine David Kerr MIPA MICM Chief Executive Officer Insolvency Practitioners Association
2 About the IPA Membership body 2,000 members, 700 students, 500 IPs Leading the UK insolvency profession in: Development of professional standards Creation of insolvency qualifications Widening access to insolvency knowledge Debates on current insolvency issues Implementation of better regulation principles
3 Insolvency Practitioner Regulation Licensing of IPs introduced by Insolvency Act 86 Licensing by Government Insolvency Service & by Recognised Professional Bodies which have: Rules for governing membership Procedures for monitoring and inspection Powers to regulate and discipline IP able to take appointment in any insolvency
4 Insolvency Practitioners Individuals (natural persons) required to - Have passed Joint Insolvency Examination Have not less than 600 hours experience in three years before applying Be fit and proper Have professional indemnity insurance Have insolvency bond against fraud/dishonesty Have maintained professional education
5 IPs Joint Insolvency Examination Set by JIE Board at degree-equivalent level Held once each year Comprises three 3.5 hours papers - Personal (natural persons) insolvencies (Bankruptcy and Individual Voluntary Arrangements) Company Liquidations (winding-up) Company Voluntary Arrangements, Administrations and Receiverships
6 IPs - Experience Engaged in work relating to: administration of estates (over which IP appointed) Involving not less than 600 hours experience in management/supervision of cases on IP s behalf Work in last three years To be certified by one or more IPs for whom applicant has worked
7 IPs Fit and Proper test Applicants for licence required to make declarations covering any personal:- Criminal proceedings Civil proceedings Bankruptcy or other insolvency proceedings Adverse findings, restrictions or removal by a professional body Other relevant facts
8 IPs Insurance and Bonding IPs require Professional Indemnity Insurance Negligence Specified cover levels IPs require (by statute) insolvency bond: Fraud and dishonesty Annual enabling (general) bond Monthly returns/ cover schedules Specified cover levels
9 IPs Professional Education Minimum 25 hours annual structured learning: Continuing Professional Education (CPE) May include attending or speaking at courses, conferences, seminars and lectures organised by commercial course and conference providers, in-house or by own/other professionals firm Required to maintain 3 years records of CPE
10 IP Standards IPs required to comply with: Legislation Statements of Insolvency Practice and act in accordance with:- Code of Ethics and take account or have regard to:- Guidance issued Dear IP bulletins issued by the Government s Insolvency Service
11 IP Monitoring and Inspection IPs are required to:- renew licence each year & declare fitness to act Submit annual* self-certifications of conformity for sample of cases selected by IPA * (other than in year of visit) Co-operate and provide answers to complaints Subject themselves and their staff/firms to inspection visits at least once every three years
12 Committees consider Licence applications IP Regulation Reports of inspection visits Complaints Other information obtained about practices which may be unprofessional, unethical, improper or unfair
13 IP Disciplinary measures Regulator power to Withdraw or suspend licences Impose restrictions or prohibitions Issue warning letters Impose fines Order payment of costs Require additional (targeted) inspections and/or self-certifications
14 IP Disciplinary (appeal) measures IP subject to disciplinary measure can appeal Complainant can ask for matter to be referred to independent Reviewer of Complaints But IPA Cannot intervene directly in, or give directions re conduct of insolvency assignments Cannot order payment by way of compensation or damages or fee repayment
15 Regulator Responsibility/Accountability Set out in Memorandum of Understanding and Principles of Monitoring with Insolvency Service Subject to oversight and three-yearly inspection by Insolvency Service Provide details of its procedures on its website Publish disciplinary findings/ regulatory decisions Provide annual reports of regulatory activity to Insolvency Service, which consolidates/publishes
16 Code of ethics Best practice and ethics Common code for all practitioners Principles-based with specified prohibitions Five fundamental principles Integrity Objectivity Professional competence* Confidentiality Professional behaviour * expertise v cost v risk (e.g )
17 Ethics code Over-arching code Framework approach Threats and safeguards Conflicts e.g. self-review threats Perception incl. acceptance of gifts: e.g. per Ukraine draft code paragraph Part of everyday approach to assignments
18 Revision of UK code 2009 Structure & specific prohibitions retained New guidance on some issues (e.g. advertising and joint appointments) Review of some areas (e.g. commissions) IFAC principles Competence principle extended to Due care Confidentiality introduced
19 Transparency Confidentiality in context IPA transparency guidance Open reporting expectations of others Decisions/transactions explained (6.6.1) A code fit for the insolvency profession Emphasis on perception Ongoing review of potential conflicts Record keeping
20 Risk to reputations:- Individual profession-wide Minimising risk Familiarisation with code Identification of threats to objectivity Recognition of perception of others Assessment of self-interest (e.g. re fees) Consultation and contemporaneous note
21 Statements of Insolvency Practice A suite of statements on specific areas of practice:- Originally guidance on BEST PRACTICE Now setting out REQUIRED PRACTICE SIP1 introduction regulatory status Transparency of primary importance Consultation and revision Enforcement Comply or explain
22 SIPs topics Liquidator s investigations Voluntary Arrangements + new Protocol re consumer IVAs Directors conduct returns (content/timing) Meetings of creditors Remuneration and accounts + new statutory Rules, April 2010 Funds (separate bank accounts) Sales of assets/businesses (valuation/disclosure)
23 Regulation of ethics Cost of regulatory procedures versus effectiveness e.g. sampling Assumptions Monitoring Visits and self-certifications CPE Complaints disciplinary sanctions The grapevine regulatory intelligence
24 Essential elements Any regulatory system must have: Integrity Independence (lay input) Consistency/ fairness Sufficient robustness Effectiveness (real and perceived) Oversight Government and public confidence
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