The World Bank and Emerging Market Insolvency Reform Mahesh Uttamchandani Senior Counsel - Insolvency and Creditor Rights The World Bank

1997/98 financial crises drew attention to: 1997/98 financial crises drew attention to: –domestic and international impact of weak legal and institutional frameworks –lack of understanding by market participants of financial system vulnerabilities –linkages between speed of response and speed of economic recover G7/G22/APEC/Financial Stability Forum response G7/G22/APEC/Financial Stability Forum response The World Bank and Insolvency - Financial Crises in Emerging Markets

- Data Dissemination (IMF) - Fiscal Transparency (IMF) - Monetary and Financial Policy (IMF) - Banking Supervision (BCP) - Payment and Settlement (CPSS) - Insurance Supervision (IAIS) - Security Regulation (IOSCO) - Corporate Governance (OECD) - Accounting & Auditing (IAS/ISA) - Insolvency & Creditor Rights (IBRD) GLOBAL FINANCIAL FRAMEWORK: CORE STANDARDS: ASSESSMENT AREAS - Anti-Money Laundering (IMF/WB) Transparency Financial Sector Market Infrastructure

CONTEXT: The Economics of Insolvency Reform in Emerging Markets 1. Increasing the Breadth and Depth of Financial Intermediation Emerging market countries are in a global competition for capital that flows where it is most welcome. Emerging market countries are in a global competition for capital that flows where it is most welcome. Willingness of lenders to lend turns on the type of lending allowed and flexibility in creating security. Willingness of lenders to lend turns on the type of lending allowed and flexibility in creating security. Complex forms of financing (factoring, distressed- debt investing) rely upon transparent and efficient legal systems. Complex forms of financing (factoring, distressed- debt investing) rely upon transparent and efficient legal systems. 2. Fostering Commercial Confidence and Predictability When the insolvency system functions well, markets are more able to accurately prices, manage and resolve risk issues. When the insolvency system functions well, markets are more able to accurately prices, manage and resolve risk issues.

CONTEXT: The Economics of Insolvency Reform in Emerging Markets 3. Restoring Balance to Commercial Relationships Well-functioning insolvency regimes encourage responsible corporate behavior and governance. Well-functioning insolvency regimes encourage responsible corporate behavior and governance. 4. Efficiently Allocating Assets and Preserving Stability Ineffective or over-regulated collateral systems lead to under-leveraging. Ineffective or over-regulated collateral systems lead to under-leveraging. Well-functioning liquidation regime allows for the orderly transfer of assets from inefficient entities (i.e. the bankrupt company) to more efficient ones. Well-functioning liquidation regime allows for the orderly transfer of assets from inefficient entities (i.e. the bankrupt company) to more efficient ones. Reasonable methods of restructuring provides a safety valve for corporate distress that helps preserve value and reduce job-loss (and, therefore, state-dependency). Reasonable methods of restructuring provides a safety valve for corporate distress that helps preserve value and reduce job-loss (and, therefore, state-dependency).

Credit Information systems D & O Liability Risk Management Practices Workout Framework Enabling Framework (i.e. tax treatment of bad debts, NPLs) AMCs & systemic corrective measures Enforcement / InsolvencyCredit Risk ManagementCredit Access / Protection World Bank Principles - Scope Compatibility of Systems Collateral Systems immovable / movable Registry Systems (Transparency) Enforcement Systems Public Auction & Collections IPG A1-5IPG B1-5 Corporate Exit Mechanisms Liquidation Rehabilitation Quasi-formal restructuring IPG C1-D9 Implementation Institutional Systems Regulatory Systems

LESSONS LEARNED Diagnostic Results in Emerging Markets 1.Creditor Rights Legislation Secured Transactions on Real Estate: functional Secured Transactions on Movable Assets: outdated 2.Registries Need of Modernization (computerized systems) Creation of Registries for Filing Security Interests on Movable Assets Technical Assistance, IDF Projects, Policy Notes, Specific Strategies 3.Insolvency Legislation Frequently Antiquated & Inefficient Unsupportive of modern businesses, especially lacking rescue procedures for financially distressed enterprises

4. Weak and Inefficient Enforcement Proceedings For Both Unsecured and Secured Claims For Both Unsecured and Secured Claims Lack of Extrajudicial Enforcement Mechanisms Lack of Extrajudicial Enforcement Mechanisms Outmoded Procedural Codes and Rules Outmoded Procedural Codes and Rules 5. Ineffective Court Systems For Both Enforcement and Insolvency Proceedings For Both Enforcement and Insolvency Proceedings Inadequate Selection and Training of Judges Inadequate Selection and Training of Judges Inefficient Case Administration Practices Inefficient Case Administration Practices Inconsistency in Decision-Making / Lack of Transparency Inconsistency in Decision-Making / Lack of Transparency Corruption Issues / Abuses of the System Corruption Issues / Abuses of the System 6. Weak Regulatory Systems Absence of Procedures and Institutions to License, Qualify and Supervise Insolvency Administrators Absence of Procedures and Institutions to License, Qualify and Supervise Insolvency Administrators LESSONS LEARNED Diagnostic Results in Emerging Markets

India: Focus on Implementation Core Weaknesses of the Indian Insolvency System Companies Act of 1956 governing liquidation has worked far too slowly, taking, on average, ten years. Companies Act of 1956 governing liquidation has worked far too slowly, taking, on average, ten years. Sick Industrial Companies Act 1985 (SICA) governing restructurings has been an abject failure as it has been allowed to be completely abused by debtors seeking to delay creditors. Sick Industrial Companies Act 1985 (SICA) governing restructurings has been an abject failure as it has been allowed to be completely abused by debtors seeking to delay creditors. Asset stripping in the Indian economy has been rampant. Asset stripping in the Indian economy has been rampant. Lack of adequate credit bureau information to track delinquent debtors Lack of adequate credit bureau information to track delinquent debtors Lack of sanctions against management has resulted in poor corporate governance in insolvency situations. Lack of sanctions against management has resulted in poor corporate governance in insolvency situations.

India: Focus on Implementation Improvements to the Regime Have Focused on Implementation and Practical Solutions Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest (SARFAESI) Act, 2002 allows secured creditors to seize, manage and sell collateral upon non-payment of debt after simple notice. Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest (SARFAESI) Act, 2002 allows secured creditors to seize, manage and sell collateral upon non-payment of debt after simple notice. Specialized debt recovery tribunals (DRT) created for banks/financial institutions to recover loans created in 1993 but modified to work more effectively in Specialized debt recovery tribunals (DRT) created for banks/financial institutions to recover loans created in 1993 but modified to work more effectively in New Credit Information Companies Act of 2005 covers the rights and responsibilities of credit bureaus to both maintain accurate credit reporting and safeguard customer confidence. New Credit Information Companies Act of 2005 covers the rights and responsibilities of credit bureaus to both maintain accurate credit reporting and safeguard customer confidence.

India: Focus on Implementation Improvements to the Regime Have Focused on Implementation and Practical Solutions (Contd) Companies Law currently being revamped pursuant to proposals from the Irani Committee and expected to come before Parliament soon: Companies Law currently being revamped pursuant to proposals from the Irani Committee and expected to come before Parliament soon: Creditor committees to supervise company restructuring Creditor committees to supervise company restructuring Restructuring managers and liquidators to be qualified professionals Restructuring managers and liquidators to be qualified professionals Special courts of qualified judges to be created and to be empowered for fast-track dispute resolution. Special courts of qualified judges to be created and to be empowered for fast-track dispute resolution. Strict penalties being introduced for asset-stripping, mismanagement and other offences. Strict penalties being introduced for asset-stripping, mismanagement and other offences.

Bank Regulators Environmental, Company, Tariff & others Professionals Administrative Courts Bankruptcy Commercial & Civil Agency Regulatory Legal Governmental & Political Cultural & Social Economic & Commercial Enterprise Creditors Employees Company laws Shareholders Directors etc Labor laws Secured Creditors State Collateral laws Mortgage laws Contract/Commercial Tax & other laws Securities laws Others laws Institutional Insolvency System Context for Insolvency Systems

The World Bank and Insolvency - Financial Crises 1997/98 financial crises drew attention to: 1997/98 financial crises drew attention to: –domestic and international impact of weak legal and institutional frameworks –lack of understanding by market participants of financial system vulnerabilities –linkages between speed of response and speed of economic recover G7/G22/APEC/Financial Stability Forum response G7/G22/APEC/Financial Stability Forum response

ROSCBINDERROSCBINDER FINANCIAL SECTOR ASSESSMENT PROGRAM and REPORTS on STANDARDS and CODES (ROSCs) Bank-Fund Country Work Area of Assessment Type (Agency Resp.) Board Presentation Follow-up actions - Data Dissemination (IMF) - Fiscal Transparency (IMF) - Monetary and Financial Policy - Banking Supervision (BCBS) - Insurance Supervision (IAIS) - Security Regulation (IOSCO) - Payment & Settlement (CPSS) - Anti-Money Laundering (IMF/WB) - Corporate Governance (OECD) - Accounting and Auditing (IAS/ ISA) - Insolvency/Creditor Rights (WB) Stand Alone (Fund) Stand Alone (Bank) IMF Board Art. IV World Bank Board CAS FSSA FSA ESW Country Dialogue Technical Assistance/ Lending Operation Capacity Building/ Policy Reform Note: ROSCs = Reports on the Observance of Standards and Code; FSAP=Financial Sector Assessment Program FSSA = Financial Sector Stability Assessment; FSA = Financial Sector Assessment ESW = Economic and Sector Work; CAS = Country Assistance Strategy FSAP (Bank & Fund)

- Data Dissemination (IMF) - Fiscal Transparency (IMF) - Monetary and Financial Policy (IMF) - Banking Supervision (BCP) - Payment and Settlement (CPSS) - Insurance Supervision (IAIS) - Security Regulation (IOSCO) - Corporate Governance (OECD) - Accounting & Auditing (IAS/ISA) - Insolvency & Creditor Rights (IBRD) G LOBAL F INANCIAL F RAMEWORK: CORE STANDARDS: ASSESSMENT AREAS - Anti-Money Laundering (IMF/WB) Transparency Financial Sector Market Infrastructure

HISTORICAL OVERVIEW 1999: Task Force & Working Groups (70+ experts) : Vetting Process / Regional Workshops –Asia, Central Europe/Baltics, Latin America, Africa & Arab States –75 Countries; 700+ public/private sector specialists –International Feedback through web-site 2001 (Apr): Board Meeting / DC Meeting 2001 (July): ICR ROSC Assessments / TA : Principles review and revision –International Forum on Insolvency Risk Management (FIRM) - 1/03 –Sustained Dialogue: G-20, APEC, FAIR, FILA, Judges Forum, IAIR Historical Overview

Historical Overview (contd) : Principles review and revision (Cont d) – –UNCITRAL Legislative Guide finalized in 2005 – –UNCITRAL Guide and WB Principles express the same standard in different formats. – –Joint effort with UNCITRAL and IMF to create unitary working document: Revised Principles and ICR Standard. – –Revised document completed and posted for comment on WB website between December 2005 and March – –Integrated document represents a single, unified standard for ICR systems.

The World Bank Insolvency Initiative

Task Force & Working Groups (70+ intl experts) Task Force & Working Groups (70+ intl experts) –Working Group Reports –Consultation Drafts Regional Workshops (5) Regional Workshops (5) –Asia, Central Europe/Baltics, Latin America, Africa & Arab States –75 Countries (60 developing) –Over 700 participants (public and private sector specialists) –International Feedback through web-site Final Principles Report Final Principles Report –World Bank Executive Directors –Joint Bank/Fund Development Committee (Ministers of Finance) Process on Principles

Develop effective systems of enforcement and insolvency that foster strong credit cultures and enable economies to promptly respond to default conditions & insolvency in a way that promotes maximum economic growth and competition domestically and internationally, aligned with the commercial expectations of todays rapidly changing global business environments. Challenge for Today

Development of Effective Systems Development of Effective Systems –Elevate awareness and understanding –Strengthen capacity Systems that respond to domestic needs Systems that respond to domestic needs –Redefining insolvency & viability –Innovative rescue solutions (accelerated procedures) –Financing vehicles & more flexible instruments Promote participation in global markets Promote participation in global markets –Adopting international best practice –Attracting foreign direct investment Challenge for Today

Credit is lifeblood of modern commerce Credit is lifeblood of modern commerce –Depends on willing lenders –In turn depends on types of lending allowed by law and reasonable assurance of repayment to lenders –Reasonable assurance often entails security Increasing significance of collateral Increasing significance of collateral –Collateral provides greater assurance of recovery –Ineffective security systems lead to underutilized asset values Increasing role of foreign credit/capital Increasing role of foreign credit/capital Modern Credit Systems

Emerging Market Characteristics Weak Financial Systems Weak Financial Systems Weak Capital Markets Weak Capital Markets Ineffective Corporate Governance Ineffective Corporate Governance Corporate financial distress at high levels Corporate financial distress at high levels Ineffective Legal & Institutional Systems Ineffective Legal & Institutional Systems Accounting practices out-of-step with IAS Accounting practices out-of-step with IAS Illiquid markets for assets and investors Illiquid markets for assets and investors Inadequate social safety nets (political obstacles) Inadequate social safety nets (political obstacles)

Emerging Market Development Lessons: Private Sector Growth Good structural policies and institutions complement macroeconomic policies Good structural policies and institutions complement macroeconomic policies Basic infrastructure of a market economy calls for effective legal framework and reliable institutions to enforce the law Basic infrastructure of a market economy calls for effective legal framework and reliable institutions to enforce the law

General Principle Credit is the lifeblood of modern commerce. All countries should adopt a regularized system of credit supported by reliable enforcement mechanisms that provide continuity in the treatment of creditor rights. A countries credit system should embrace the broadest range of credit transactions, coupled with an efficient, inexpensive, transparent, predictable and enforceable system of taking a security interest in property. Creditor rights regimes should be complemented by and harmonized with a countrys insolvency laws. Linkage Between Credit and Enforcement Systems

Credit is lifeblood of modern commerce Credit is lifeblood of modern commerce –Depends on willing lenders –In turn depends on types of lending allowed by law and reasonable assurance of repayment to lenders –Reasonable assurance often entails security Increasing significance of collateral Increasing significance of collateral –Collateral provides greater assurance of recovery –Ineffective security systems lead to underutilized asset values Increasing role of foreign credit/capital Increasing role of foreign credit/capital Modern Credit Systems

Security Devices & Enforcement Mechanisms Broadest range of security devices Broadest range of security devices – Movables, immovables, future property rights Effective enforcement systems Effective enforcement systems –Reinforce and stimulate domestic credit practices –Encourage foreign direct investment –Serve as disciplinary mechanisms for incompetent borrowers –Foster consensual resolutions by providing more predictable backdrop

Establish minimum standards of transparency Establish minimum standards of transparency –Information fosters cooperation Participants need sufficient information of: Participants need sufficient information of: –A borrower's operations and related financial criteria –The enforcement process -- both judicial or non-judicial Accounting & auditing practices Accounting & auditing practices Corporate law and regulation should guide the conduct of the borrower's shareholders, management and directors Corporate law and regulation should guide the conduct of the borrower's shareholders, management and directors Law imposed impartially & consistently Law imposed impartially & consistently Principal Conclusions Cornerstones of Confidence: Transparency & Accountability

Recognizing that individual countries make different policy choices regarding their substantive and procedural laws and the allocation of risk among all participants, these rules must be clearly specified and consistently applied. Recognizing that individual countries make different policy choices regarding their substantive and procedural laws and the allocation of risk among all participants, these rules must be clearly specified and consistently applied. Well-defined and predictable risk allocation rules and consistent application of laws should encourage investment Well-defined and predictable risk allocation rules and consistent application of laws should encourage investment A procedure that is unfriendly to investors but consistently applied is preferable to uncertainty because it provides a framework for managing risk through price adjustment A procedure that is unfriendly to investors but consistently applied is preferable to uncertainty because it provides a framework for managing risk through price adjustment Principal Conclusion Cornerstones of Confidence: Certainty & Predictability

Bank Regulators Environmental, Company, Tariff & others Professionals Administrative Courts Bankruptcy Commercial & Civil Agency Regulatory Legal Governmental & Political Cultural & Social Economic & Commercial Context for Insolvency Systems Enterprise Creditors Employees Company laws Shareholders Directors etc Labor laws Secured Creditors State Collateral laws Mortgage laws Contract/Commercial Tax & other laws Securities laws Others laws Institutional Insolvency System

Credit Assessment Credit Assessment Information Information Identify Security Identify Security Negotiation Negotiation pricing pricing Contracting Contracting Registry Registry Monitoring Monitoring Risk Assessment Information Identify Options Negotiation pricing pricing Amend Contracts Possible action Monitoring Enforcement Formal Insolvency Liquidation, Rescue Security Rights Information Negotiation (Plan) Implementation Monitoring Credit Access Financial Distress Enforcement & Insolvency Risk Assessment Continuum Source: The World Bank

A modern, credit-based economy requires predictable, transparent and affordable enforcement of both unsecured and secured credit claims by efficient mechanisms outside of insolvency, as well as a sound insolvency system. These systems must be designed to work in harmony. (IPG 1) A modern, credit-based economy requires predictable, transparent and affordable enforcement of both unsecured and secured credit claims by efficient mechanisms outside of insolvency, as well as a sound insolvency system. These systems must be designed to work in harmony. (IPG 1) Unsecured Debt (IPG 2) Unsecured Debt (IPG 2) Secured Debt: Creation, recognition, enforcement of (IPG 3-5) Secured Debt: Creation, recognition, enforcement of (IPG 3-5) Principles on Creditor Rights and Enforcement (IPG 1-5) General Principles

Legal Framework (policy choices) Legal Framework (policy choices) –General principles (IPG 6-16) –Rehabilitation (IPG 17-23) –International Considerations (IPG 24) –Credit Culture and Corporate Workouts (IPG 25-26) Design considerations Design considerations –Integration, Capacity, Operational integrity, Global outlook Policy objectives Policy objectives –Efficiency, Predictability, Transparency, Accountability Principles for Legal Framework: (Design Considerations & Policy Objectives)

Role of Governing/Judicial Authority (IPG 27) Role of Governing/Judicial Authority (IPG 27) Performance Standards/Qualifications (IPG 28) Performance Standards/Qualifications (IPG 28) Court Organization (IPG 29) Court Organization (IPG 29) –Resourcing, operations, court procedures Transparency and Accountability (IPG 30) Transparency and Accountability (IPG 30) Judicial decision-making & Enforcement (IPG 31) Judicial decision-making & Enforcement (IPG 31) Integrity of Governing Authority (IPG 32) Integrity of Governing Authority (IPG 32) –Rules to avoid conflicts and conduct that undermine public confidence Implementation (Institutional Framework)

The regulation of an insolvency system is essential to assure the competence of office holders and other participants, to ensure the efficiency and effectiveness of the system, and to maintain the integrity of and public confidence in the system. Implementation (Regulatory Framework)

Hallmarks of a properly regulated system Hallmarks of a properly regulated system –Clarity, transparency & fairness, predictability, accountability –Public confidence and credibility Regulatory Elements Regulatory Elements –Integrity of Participants (IPG 33 & 35) –Role of Regulatory or Supervisory Bodies (IPG 34) Regulatory Framework

Obstacles To a Strong Regulatory Framework Economic: The state budget cannot support an agency dedicated solely to regulating insolvency administrators –Technical assistance available from multi-lateral and bi-lateral agencies to help set-up agencies. –Levies can be used to fund the operating costs of the agency Political: Such regulation is inconsistent with modern capitalism and is a breeding ground for corruption Political: Such regulation is inconsistent with modern capitalism and is a breeding ground for corruption –Even the most robust forms of capitalism require some state regulation. –Weigh the possibility of corruption within the agency against the likelihood of corruption without it.

ROSC Assessment (Table 1) RegionCompletedFinal Stages OngoingProjected FY06 AFR / MNA Kenya, Mauritius, Morocco, S Africa Cameroon, Uganda CEMAC (6)Nigeria EAP / SA India, Philippines, Vietnam Nepal, Sri Lanka India v.2 ECA Czech Rep, Kyrgyz Rep, Lithuania, Romania, Russia, Slovakia, Slovenia, Turkey, Ukraine [Hungary] [Poland] LAC Argentina, Bolivia, Brazil, Chile, Ecuador, El Salvador, Honduras, Nicaragua Colombia, Jamaica, Paraguay Guatemala, Uruguay Dominican Rep, Mexico, 2424 Total621010

Importance of Effective Insolvency Systems Financial Stability Insolvency and Cr. Rights Efficient Allocation of Resources Value Preservation Private Sector Growth Financial Sector Development Improved Access to Credit ECONOMIC GROWTH

Bank Regulators Environmental, Company, Tariff & others Professionals Administrative Courts Bankruptcy Commercial & Civil Agency Regulatory Legal Governmental & Political Cultural & Social Economic & Commercial Enterprise Creditors Employees Company laws Shareholders Directors etc Labor laws Secured Creditors State Collateral laws Mortgage laws Contract/Commercial Tax & other laws Securities laws Others laws Institutional Insolvency System Context for Insolvency Systems

World Bank Principles - Scope Credit Information systems D & O Liability Risk Management Practices Workout Framework Enabling Framework (i.e. tax treatment of bad debts, NPLs) AMCs & systemic corrective measures Enforcement / InsolvencyCredit Risk ManagementCredit Access / Protection Compatibility of Systems Collateral Systems immovable / movable Registry Systems (Transparency) Enforcement Systems Public Auction & Collections IPG A1-5 IPG B1-5 Corporate Exit Mechanisms Liquidation Rehabilitation Quasi-formal restructuring IPG C1-D9 Implementation Institutional Systems Regulatory Systems

RISK ASSESSMENT CONTINUUM Credit Assessment Information Identify Security Negotiation pricing Contracting Registry Monitoring Risk Assessment Information Identify Options Negotiation pricing Amend Contracts Possible action Monitoring Enforcement Formal Insolvency Liquidation, Rescue Security Rights Information Negotiation (Plan) Implementation Monitoring Increasing financial distress Risk Evaluation Process Credit AccessRisk ManagementResolution / Recovery

Nigeria: Goals for Insolvency Reform Foster commercial confidence and predictability Foster commercial confidence and predictability – Markets more accurately price, manage, resolve default risk – Establish a predictable backdrop for negotiations – Reduce asset deterioration and promote credit access Safety valve for corporate distress Safety valve for corporate distress – Salvage viable businesses and preserve jobs (rescue) – Efficient transfer of assets (bankruptcy) Vital to balance in commercial relationships Vital to balance in commercial relationships – Encourage responsible corporate behavior & governance – Penalize owners and managers who lack financial discipline or behave irresponsibly

World Bank Insolvency Reform: Lessons Learned (1) Not so special after all? Virtually no correlation between having a specialized bankruptcy court and a system that is perceived by users as being more predictable and transparent. Lesson: Courts that are specialized in name only, do not add value.

World Bank Insolvency Reform: Lessons Learned (2) Time is money Strong correlation between systems that work quickly and those that are cost- effective. Lesson: If we can remove inefficiencies from the system that cause delays, we can increase the returns of all creditors.

World Bank Insolvency Reform: Lessons Learned (3) Great minds think alike Strong correlation between judicial competence and trustee/administrator competence. Lesson: Insolvency administrators and insolvency judges can mutually reinforce competence.

Nigeria ICR ROSC – Preliminary Findings Legislative Drafting is not the Cure-All Legislative Drafting is not the Cure-All The regulatory and judicial institutions designed to implement the Companies and Allied Matters Act do not work.

Nigeria ICR ROSC – Preliminary Findings Large Disconnect Between Perceptions of Providers and Clients. Large Disconnect Between Perceptions of Providers and Clients. Corporate Affairs Commission Registry Courts

Nigeria ICR ROSC – Preliminary Findings Law is Only Part of the Solution Law is Only Part of the Solution Basic structural problems within Nigeria often act as an obstacle to improving the lending environment.

The Way Forward Finalize draft recommendations Finalize draft recommendations Convene Stakeholders Committee Convene Stakeholders Committee Work with Stakeholders Committee to finalize recommendations for delivery to government. Work with Stakeholders Committee to finalize recommendations for delivery to government. Work with government to implement recommendations. Work with government to implement recommendations.

Importance of the financial reporting infrastructure not just accounting and auditing standards Statutory Framework Monitoring & Enforcement Education & Training Accounting Profession & Ethics Accounting Standards Auditing Standards Financial Reporting Infrastructure

All supporting pillars need to be strengthened Statutory Framework Monitoring & Enforcement Education & Training Accounting Profession & Ethics Accounting Standards Auditing Standards Financial Reporting Infrastructure