Position Paper PROVIDING THE LEGAL AND POLICY ENVIRONMENT TO SUPPORT EFFECTIVE INFORMAL WORKOUT REGIMES IN THE ASIA-PACIFIC REGION 1. The Asian Bankers Association (ABA) considers robust insolvency and creditor rights systems essential to the development, sustainability, and stability of financial markets. Effective insolvency systems benefit creditors, debtors, financial communities, governments and, ultimately, economies. Insolvency and creditor rights systems include both formal and informal regimes for dealing with the financial difficulties of a debtor. 2. We support efforts to promote effective region-wide insolvency and creditor rights systems. We commend, in particular, the work of the Asian Development Bank (ADB) in promoting the development of legal infrastructure and systems to support the growth of cross-border trade and investments. 1 We also commend the progress achieved by a number of economies in facilitating measures to enhance insolvency law regimes and institutional capacity. 2 Developing informal workout regimes in the Asia-Pacific region 3. We recognize the importance of informal workouts, which can provide cost-effective, efficient, flexible and contractually sustainable solutions to resolve debtors financial affairs outside the courts or other more formal systems. We believe that, to support a functional informal workout regime, there must be readily accessible formal insolvency procedures available to creditors on an expeditious basis if debtors are to be encouraged to cooperate in the formulation of meaningful informal workout strategies. 3 1 This regional technical assistance program focuses on the promulgation of laws for the handling of insolvency cases involving debtors with assets in more than one jurisdiction within the region, and involves the development and promotion of principles to guide financial institution creditors in and about the conduct of informal workouts with those of their customers experiencing financial difficulties. Further details on the ADB s regional technical assistance to promote regional insolvency and insolvency related development and reforms in Asia are available on the technical assistance website (http://adb.bdw.com/). 2 Three important developments deserve to be mentioned here. First, creditors' voluntary liquidation exist in a number of jurisdictions such as in Singapore, Malaysia, Hong Kong, China, New Zealand and Papua New Guinea, as well as voluntary administration regimes, as in Australia. Second, a large number of countries in the region are already party to the New York Convention on Arbitration. Third, some countries in the region have adopted (in the case of Japan) or are considering adopting (in the case of Australia and New Zealand) legislation based on the UNCITRAL model cross border insolvency law. 3 Such procedures are necessary as informal workouts are premised on the principle that, wherever possible, the business of a debtor in financial difficulty should be provided with the opportunity to survive as a going concern if it appears to be possible to resolve those difficulties and to achieve the long term viability of that business through a restructuring. For an informal workout to be implemented,
4. We note that a body of broad principles giving structure to informal workout processes has been developed, notably the INSOL Statement of Principles, 4 and that various initiatives to establish informal workout processes in the region have been undertaken to deal with problems within the banking sector arising from the 1997-98 financial crisis. However, we observe that an international approach to informal workouts within the Asia-Pacific region is absent. 5. To address this issue, we encourage the region-wide acceptance of a set of non-binding regional guidelines for informal workouts, based on the principles for informal workouts formulated by the ADB. To this end, the ABA has formally adopted such a set of guidelines, as well as a model agreement serving as a template that can be adapted to suit a particular jurisdiction or individual workout. Providing a robust environment for effective informal workout regimes 6. Inasmuch as guidelines or principles for informal workouts are not by themselves sufficient to promote out-of-court company restructurings, we see the need to strengthen formal regimes and institutional capacity within the region. We believe that, with inadequate formal insolvency law regimes and institutional capacity, corporate collapses cannot be effectively dealt with on either a formal or an informal basis in the region. This has a detrimental effect on creditors and discourages investment. 7. In view of the preceding considerations, we therefore call for further substantial measures to strengthen formal insolvency law regimes and institutions in the region. In particular, we propose the following measures: a. Adopt a fast-track formal workout regime. We call on governments in the Asia-Pacific region to adopt formal insolvency regimes that provide for fast track mechanisms, meeting certain preconditions, to give effect to consensual restructuring proposals. This will support a functional informal workout regime by making readily accessible formal insolvency procedures available to creditors, so as to encourage debtors to cooperate in the formulation of meaningful informal workout strategies. As the commercial culture in many Asian economies tends toward non-confrontational dispute resolution by negotiation and mediation, rather than the employment of strict legal processes, we see a need to develop the necessary elements of an informal negotiated approach to the problem of an insolvency or financially troubled corporate debtor, including a mechanism to facilitate quick and where there are multiple financial creditors of a debtor, there must be coordination among them. A collaborative response provides time to manage the impact of debtor defaults and creates an opportunity to explore and evaluate the options for consensual agreement outside a formal process. It also acknowledges the interdependence of members of the financial community when addressing the resolution of claims against a debtor with multiple lenders. 4 See Statement of Principles for a Global Approach to Multi-Creditor Workouts, INSOL International, 2000 located on the INSOL website (http://www.insol.org/lenders.pdf). 2
expeditious handling and approval by insolvency courts of workouts resolved by informal means. 5 b. Enact legislation providing for Creditors Voluntary Liquidation or Voluntary Administration. The ABA calls on governments in the Asia-Pacific region to adopt a creditors voluntary liquidation regime, which is already available in a number of economies in the region, or voluntary administration, as practised in Australia. Courts need not necessarily be involved in all aspects of an insolvency administration. The companies legislation in economies that have adopted the model of the United Kingdom Companies Act provides for a procedure known as creditors voluntary liquidation. 6 This procedure is initiated by resolutions of meetings of each of the company's shareholders and its creditors. There is also the voluntary administration process which has been developed in Australia and which is being proposed to be made available in New Zealand. A company enters voluntary administration by, amongst other means, a resolution of its board of directors. In the case of both forms of administration, no recourse need be had to the courts as the outworking of the relevant company's affairs is progressed. That is not to say that such recourse will always be unnecessary but implementation of such regimes would lead, at least generally, to less reliance on court processes. The availability of such extra-curial facilities and the possibility that they provide for the ready invocation of a formal process for the affairs of a financially troubled debtor, may encourage prospective parties to an informal workout to cooperate in its formulation rather than to stand apart from that process. c. Promote a regional center (or centers) for the resolution by arbitration of cross-border disputes. The ABA calls on Asia- Pacific economies to promote a regional center (or centers) for the resolution of disputes by arbitration. Consideration should also be given to establishing specialist divisions within regional arbitration centers to deal with cross border insolvency issues. 5 A "fast track" court mechanism is often needed when an attempt at a workout has reached a point where a majority of participating creditors have signalled satisfaction with an informal reorganization plan but there are dissentients without whose involvement the plan cannot be implemented. If the majority of the informal plan are in favour of it, that would comply with the requirements of creditor approval under any relevant formal reorganization process, then a solution is to provide for a conversion mechanism within the formal insolvency law regime to permit the result of the informal process to be given formal effect. Such a mechanism would provide a "fast track" into the formal insolvency regime and would avoid having to undertake a large part of the procedure required under the formal law. This concept and the type of legislation that might be required to implement the concept is part of the work being developed by UNCITRAL in its work on legislative guidelines for insolvency law. We also note that the Philippines is considering adoption of such a mechanism in its draft insolvency law (the Corporate Recovery Act) which is currently being considered by the relevant legislative bodies of that country. 6 Those countries include at least Australia, Hong Kong, China, Malaysia, New Zealand, Papua New Guinea and Singapore. 3
Promoting a regional center or centers (either by establishing new ones or through strengthening existing arbitration centers such as the Singapore International Arbitration Center and the Hong Kong Center for International Arbitration) for alternative dispute resolution could help alleviate weaknesses in institutional capacity in various jurisdictions and provide a credible alternative to overburdened and under-resourced judicial systems. Additional to the courts, arbitration might provide a means by which disputes could be resolved efficiently and by the involvement of people with the requisite commercial knowledge and experience. Again, access to an efficient and effective means of resolving disputes which can produce an enforceable outcome can provide encouragement to participation in an informal workout process. d. Strengthen cross-border cooperation and assistance in insolvency cases. The ABA calls on Asia-Pacific economies to advance the prospects of adoption within the region of the UNCITRAL model law on cross-border insolvency, or some other internationally recognized approach. There must be readily accessible formal insolvency procedures available to creditors on an expeditious basis if debtors are to be called upon to cooperate in the formulation of meaningful informal workout strategies. Such formal processes should include an effective mechanism to deal with cross border insolvencies. The growth of both regional and international trade and commerce has focused attention on problems associated with cross-border insolvency. The trading and business activities of many Asian corporations results in such corporations having businesses, assets and trading activities in multiple Asian jurisdictions. If such a corporation becomes insolvent and is subject to any insolvency administration in one jurisdiction, it becomes important that the other jurisdictions in which its business activities are situated can respond to and, hopefully, cooperate in the overall administration of the corporation. The laws of most Asian economies are entirely deficient in providing for cases of cross-border insolvency. In the absence of a law or legal process that enables the insolvency administration of a company, which is usually initiated in the jurisdiction in which it was incorporated to be recognized in other jurisdictions, it may be difficult or impossible to ensure that its affairs are dealt with as a whole and in a coordinated way. An effective cross-border insolvency law regime would provide an environment (or "credible threat") that would facilitate an informal workout process of a company operating in a number of different jurisdictions by providing a readily accessible formal insolvency procedure, applicable across international borders, to that company. The most recent development to address the handling of crossborder insolvencies has been to propose uniform cross-border 4
insolvency legislation which would equip every country with similar legislative provisions regarding recognition, relief and cooperation between and with the courts, regulators and administrators of other countries. This has been the thrust of the model cross-border insolvency law proposed by UNCITRAL. e. Implement measures to enhance institutional capacity. The ABA calls on the APEC Finance Ministers to explore ways of ensuring that insolvency law regimes provide a credible threat that will adequately motivate parties to engage in informal workout processes. More generally, it is accepted that consensual arrangements of the kind embodied in the Model Agreement to Promote Company Restructuring developed by the ADB and ABA are more likely to be reached in an environment where formal processes not only exist but are readily available. Work undertaken by the ADB and the IMF supports the conclusion that a considerable deal needs to be done in the region to bolster its institutional capacity. It is recognized that such work not only involves law reform directing to establishing model insolvency law regimes, but also institutional reforms that enable courts, government bodies and relevant professionals to better and more effectively administer those laws. To bolster institutional capacity, measures should include at least the following initiatives: i. providing judges with training about modern business transactions; ii. providing funding to alleviate general delays in the court systems; iii. improving court procedures to provide for more transparent processes; iv. making courts and government bodies more publicly accountable for their actions; v. improving the salaries of judges and other government law enforcement officials; vi. enhancing the regulatory system which underpins the operation of a country's insolvency laws; and vii. supporting the development of a body of suitably qualfied insolvency practitioners. 8. The ABA believes that there are sound economic reasons to implement reforms to enhance insolvency laws and the institutional capacity of jurisdictions in the region. As a general proposition, it may be stated that trade and commerce benefit from the application of certain and predictable laws. If relevant laws and commercial practices are certain and predictable, it is more likely that trade, commerce and foreign investment will be encouraged and facilitated. If a jurisdiction's laws and commercial practices are unpredictable, foreign investors will either not invest at all or demand a higher return on their investments to compensate them for the 5
greater risk that they face or, at least, perceive that they face. We therefore urge governments in the region, acting individually and in concert through organizations such as APEC, to undertake the legal and policy measures we have outlined above. Melbourne, Australia, 18 October 2005 6