Maritime cross‐border insolvency in China

Due to the high degree of mobility of ships and the special operational structures of shipping companies, it is difficult to harmonise the cross‐border insolvency regime with the maritime law regime governing ships. One of the typical examples is the recent bankruptcy of Hanjin Shipping Co Ltd. Chinese creditors were heavily affected by the bankruptcy of Hanjin. However, Hanjin never filed an application to have its Korean insolvency proceeding recognised in the People's Republic of China (PRC). Nor did it commence any ancillary insolvency application under the Enterprise Bankruptcy Law of the PRC. Taking Hanjin's bankruptcy as an example, this article examines the current statutory regime of cross‐border insolvency in the PRC in detail and analyses the approach adopted by the Chinese courts to resolve the conflicts that arise between the cross‐border insolvency and maritime law regimes.     

Comparing the performance of market-based and accounting-based bankruptcy prediction models

Recently developed corporate bankruptcy prediction models adopt a contingent claims valuation approach. However, despite their theoretical appeal, tests of their performance compared with traditional simple accounting-ratio-based approaches are limited in the literature. We find the two approaches capture different aspects of bankruptcy risk, and while there is little difference in their predictive ability in the UK, the z-score approach leads to significantly greater bank profitability in conditions of differential decision error costs and competitive pricing regime.     

The corporate reorganization regime under China's new enterprise bankruptcy law

This paper reviews the background of embarking on the bankruptcy law reform of China, and examines the newly introduced corporate reorganization regime under China's new Enterprise Bankruptcy Law 2006. As a patchwork of the US Chapter 11 and English Administration, China's new regime is a good law on paper with sound intention and perfect logic. But there are still many legal and institutional impediments to the new regime's utilization. For example there is a serious institutional incapacity among the judiciary, as the necessary training and organization of thousands of professionals has not started. Also of concern is the still‐unfinished process of updating and modification of related laws and accounting standards as well as their application and enforcement. Enacting a new bankruptcy law is only the first step. Copyright © 2008 John Wiley & Sons, Ltd.     

The Use of Noncourt‐Based Corporate Rescue: Does the Australian Voluntary Administration Procedure Provide a Model for China?

In the recent international history of insolvency law reform, the reform of corporate rescue and restructuring has been an ongoing project. In China, the enactment of the Enterprise Bankruptcy Law 2006 saw the introduction of a bankruptcy reorganisation procedure that incorporates the debtor‐in‐possession model found in Chapter 11 of the US Bankruptcy Code. However, the Chinese corporate rescue procedure has been significantly underused due in part to various drawbacks associated with this court‐based and highly politicalised process. This paper explores the possibility of reforming China's current corporate rescue regime by drawing upon the Australian voluntary administration procedure. Found in Part 5.3A of the Corporations Act 2001 (Cth), this procedure was designed to provide a relatively swift, inexpensive and flexible corporate rescue mechanism for companies in financial distress. It comprises a noncourt based mechanism under the control of one or more professionally qualified private administrators. It is interesting to note that the UK also moved away from exclusive reliance upon court‐based administration procedures following the passage of the Enterprise Act 2002. This moved the UK closer to the Australian practitioner‐dominated approach to corporate rescue. This paper argues that the addition of a voluntary administration‐style procedure to China's current corporate rescue regime may be needed as China develops its market economy based on the rule of law. Copyright © 2017 INSOL International and John Wiley & Sons, Ltd     

Question the Unquestionable Beauty of A Collective Proceeding for All Sovereign Debt Claims

The new challenges presented by the current Eurozone crisis and the NML Capital v. Argentina case are likely to shift the international community's attention from holdout behavior in foreign bonds restructuring to inter‐creditor issues. In the past years, many academics, and nongovernmental organizations concerned with debt relief, have put forward proposals to create a bankruptcy regime for states. But none of these proposals has seriously examined what rules should apply to treatment among creditors. Moreover, all insist that there must be a collective proceeding for all sovereign debt claims, without explaining why. This approach is simply taken for granted, as it is one of the fundamental principles of bankruptcy law. The article questions this orthodoxy through examining the nature of sovereign debt crisis, the feature of the limited pool of sovereign assets, and the nonliquidable fact of the sovereign debtor. It also argues that the common pool problem does not exist in the sovereign debt context.     

Insurance and Endogenous Bankruptcy Risk: When is it Rational to Choose Gambling,Insurance, and Potential Bankruptcy?

We examine the coexistence of insurance and gambling in the context of limited liability. We develop a model where actuarially fair insurance is available to a risk-averse decision maker for a liability risk with non-bankrupting severity. The remaining wealth may be invested in a zero expected value risky project (i.e., gambled). The risk of bankruptcy is endogenous since either fully insuring or forgoing the project will guarantee solvency. We show that, for a range of parameters, it is optimal to both insure and gamble. The amounts insured and invested are chosen to create the potential for bankruptcy. Our results are robust to the cases where the risky project can cause bankruptcy without a liability loss and where the risky project’s expected return is nonzero.     

Apples and oranges? Corporate rescue and functional convergence in the US and UK

This paper challenges the standard characterisation that US law in the sphere of corporate bankruptcy is ‘pro debtor’ and UK law is ‘pro creditor’. It suggests that the traditional thesis is, at best, a potentially misleading over‐simplification. It also offers the conclusion that there is functional convergence in practice, while acknowledging that corporate rescue, as distinct from business rescue, still plays a larger role in the US. The functional convergence has partly come through the UK Enterprise Act 2002 but the paper suggests that the main move has been that of US law and practice in a UK direction with more emphasis on business disposals and speedier cases than on corporate reorganisations, as traditionally understood. This mirrors practice in the UK where the emphasis has always been on business disposals. Unfortunately, the current economic recession on both sides of the Atlantic has shone a heightened spotlight on business bankruptcy and is likely to generate further changes in practice and ultimately legislation. Copyright © 2009 John Wiley & Sons, Ltd.     

特殊普通合伙制下注册会计师法律责任确认与承担的几个关键问题

特殊普通合伙会计师事务所在我国作为一个新生事物,其法律责任的确认、承担与举证等方面存在诸多不确定问题。本文通过分析特殊普通合伙法律责任中涉及的重要概念,确定注册会计师合伙人法律责任承担的评判标准、顺序、举证责任及有限与无限责任的范围。     

On real interest rate dynamics and regime switching

We find evidence of regime switching dynamics in the USA and the UK real interest rates over the period 1881–2003. For the UK, there is a regime in which the real interest rate displays a relatively stronger mean-reversion and a regime in which it displays a relatively weaker mean-reversion. The former regime is characterized by a relatively larger error in the estimation of the reversion parameter, and higher volatility. For the USA, the two regimes differ in volatility. The probability of transition from one regime to another is found to be significantly related to the inflation rate regime, and to the political regime. The results highlight the importance of regime switching in the dynamics of the real interest rate, as well as the role of inflation and political regimes in explaining this switching.     

AUDITOR LIABILITY: THE OTHER SIDE OF THE DEBATE

The auditing industry claims to be an unfair victim of lawsuits and has deployed its considerable economic and political muscle in a campaign to secure further liability concessions. Amongst other things, it seeks to replace “joint and several liability” of partnerships with “full proportional liability”, a “cap” on auditor liability and a statutory right to negotiate liability limits with company directors. This paper challenges the evidence and the arguments advanced by the UK auditing industry. It argues that there is little convincing argument to support that industry's claims. On the contrary, ordinary stakeholders are relatively powerless to take action against negligent auditors. It is noted that most of the major lawsuits are by one accountancy firm against another. The UK auditing industry already enjoys considerable privileges, such as incorporation and “contributory negligence”, a form of modified proportional liability. Despite these privileges, the industry has shunned public accountability. It is holding the UK public to ransom by threats of locating its operations in offshore islands. Scholars are urged to develop alternative public policy options and analysis.     

THE ENERGY MLP GOES INSTITUTIONAL: IMPLICATIONS FOR STRATEGY AND GOVERNANCE

Master limited partnerships (MLPs) were popular in the 1980s because of the favorable tax treatment of their cash distributions. But since the Revenue Act of 1987, which imited the lines of business and income sources for which this tax treatment was available, virtually all remaining public MLPs have been in natural resource businesses.
Institutional investors have traditionally avoided investing in master limited partnerships because any cash distributions must be treated as unrelated business income, creating an immediate tax liability. But in an innovative underwriting in May 001, Goldman Sachs offered shares in a limited liability company that would pay stock dividends equivalent to the cash distributions on its proportional ownership interest in Kinder Morgan Energy Partners, a pipeline operator. In effect, this structure allows tax-exempt investors (institutions) to own an interest in Kinder Morgan Energy Partners without triggering unrelated business taxable income.
An interesting aspect of this recent development is that while the MLP was originally viewed as a vehicle for slow-growth firms to distribute cash and wind down operations, the "institutional" MLP could be used to facilitate growth by attracting needed investment to businesses currently housed in MLP form—typically energy transportation and storage infrastructure businesses (so-called "mid-stream" energy assets). The new structure raises some potential corporate governance challenges in that it is highly complex and offers investors only limited control rights. But the authors' conclusion is that the institutional MLP is likely to be a successful financing innovation whose tax-favored status and extensive public disclosure will outweigh any governance concerns.     

Strategic judgment proofing

A liquidity‐constrained entrepreneur raises capital to finance a business activity that may harm bystanders. The entrepreneur raises senior (secured) debt to shield assets from the tort victims in bankruptcy. For a fixed level of borrowing, senior debt creates better incentives for precaution taking than either junior debt or outside equity. The entrepreneur's level of borrowing is, however, socially excessive. Giving tort victims priority over senior debtholders in bankruptcy prevents overleveraging but leads to suboptimal incentives. Lender liability exacerbates the incentive problem even further. A limited seniority rule dominates these alternatives. Shareholder liability, mandatory liability insurance, and punitive damages are also discussed.     

论我国会计师事务所有限责任合伙制改造

通过对我国会计师事务所体制的基本状况及会计师事务所问卷调查,分析了国际上主要国家有限责任合伙制会计师事务所的改制历程,认为有限责任合伙制会计师事务所具有比较优势。为此,我国应创造条件尽快实行会计师事务所有限责任合伙制改造。     

"黑石法案"与私募基金征税之困惑

有限合伙制适应私募基金的多方面要求,也是美国私募基金的主流法律形式。本文梳理了有限合伙型私募基金的主要特征,分析了美国关于私募基金税收方面的制度安排,并在介绍美国黑石集团上市所引发的税收争论的基础上,提出在我国现行制度下对于新兴私募基金征税的相关策略。     

Medicare--substitute HMOs--reimbursement from other insurance. Care Choices HMO v. Engstrom

The federal statute that permits Medicare-substitute HMOs to seek reimbursement from other insurers does not provide the HMOs with a private federal remedy for reimbursement. It permits Medicare-substitute HMOs to provide in their policies that they are entitled to reimbursement in cases where other insurance, such as the third-party liability insurance of a party responsible for causing an injury, is available. The HMO must sue in state court for its contractual right to reimbursement. It may not sue in federal court under the federal statute that merely allows it to provide for reimbursement in their policies.     

The Environmental Liabilities of a Bankruptcy Estate

The conflict between the bankruptcy creditors and the environmental responsibilities of a bankruptcy estate is discussed globally. The creditors' receivables are usually included in the protection of property rights regulated by Constitution. On the other hand, one can ask whether the bankruptcy estate is breaking the law as an operator by refusing to abolish the harmful environmental pollution. The bankruptcy estate is deemed to be an operator when it has the legal and factual possibility of taking the necessary environmental actions. Accordingly, the costs of the environmental measures taken by authorities instead of the bankruptcy estate must be paid with a super priority from the assets of the bankruptcy estate. Instead, the question concerning the priority status of private environmental damages is a political matter. The argumentation presented in the article may contribute new legislation concerning the environmental liabilities of bankruptcy estates. Copyright © 2017 INSOL International and John Wiley & Sons, Ltd.     

论有限责任的实现及其法律适用界限

有限责任制度适用于公司、商业信托、合伙企业等各种商业组织形态.在这些企业中,有限责任通过构建商业组织和资产分割得到实现.组织化的重要功能在于通过建立公司或商业信托构建法律实体、促成资产分割并形成独立公司财产或独立信托财产从而实现商业组织所有人的有限责任.有限责任削弱了对债权人利益的保护,容易造成利益不均衡.在有限责任制度被滥用的情况下,应适用法人人格否认、实质合并规则等制度性措施予以纠正.同时,应谨慎对待有限责任在专业服务领域的适用,强调专家严格责任.     

Wealth distribution in Chinese bankruptcy reorganization law and practice

Wealth distribution provisions in bankruptcy reorganization law, which regulate the distribution of the debtor's overall value among all the interested parties with an aim of ensuring a fair and equitable distribution, constitute an important part of the bankruptcy reorganization law. This article first examines the wealth distribution provisions contained in Chinese bankruptcy reorganization law from a Sino‐US perspective and then explores the wealth distribution in Chinese bankruptcy reorganization practice through an empirical study of 18 bankruptcy reorganization cases of listed corporations in China. After an analysis of Chinese legal provisions on wealth distribution and their application in practice, this article draws the conclusion that wealth distribution in Chinese bankruptcy reorganization practice is far from being fair and equitable, which may cause abused use of the reorganization proceeding and distort the operation of the bargaining mechanism. Reform suggestions for Chinese bankruptcy reorganization law are proposed at the end. Copyright © 2011 John Wiley & Sons, Ltd.     

Liability Risk for Outside Directors: a Cross‐Border Analysis

Much has been said recently about the risky legal environment in which outside directors of public companies operate, especially in the USA, but increasingly elsewhere as well. Our research on outside director liability suggests, however, that directors’ fears are largely unjustified. We examine the law and lawsuit outcomes in four common law countries (Australia, Canada, Britain, and the USA) and three civil law countries (France, Germany, and Japan). The legal terrain and the risk of ‘nominal liability’(a court finds liability or the defendants agree to a settlement) differ greatly depending on the jurisdiction. But nominal liability rarely turns into ‘out‐of‐pocket liability,’ in which the directors pay personally damages or legal fees. Instead, damages and legal fees are paid by the company, directors’ and officers’(D&O) insurance, or both. The bottom line: outside directors of public companies face a very low risk of out‐of‐pocket liability. We sketch the political and market forces that produce functional convergence in outcomes across countries, despite large differences in law, and suggest reasons to think that this outcome might reflect sensible policy.     

中国产业投资基金组织形式探讨

产业投资基金(也称私募股权基金或股权投资企业)已经成为全球资本市场的重要参与者,但在我国尚处于起步阶段.在我国现行法律制度下,产业投资基金可能采取的组织形式分别为公司制、有限合伙制及信托制.本文针对投资者权利、税收地位、激励机制、资金筹集、资本退出、承诺出资制度及监督机制等方而对三种产业投资基金进行了分析比较,认为公司制和有限合伙制提供了较为完备的制度规范和税收优势,应成为未来我国产业投资基金的主要组织形式.