Funding corporate rescue: the Impact of the financial crisis

Insolvency reform across many jurisdictions over the last twenty years has focused on the development of legislation to facilitate business reorganizations. However, any regime which involves rescue requires a degree of support from the commercial environment. The rescue regimes may therefore be severely tested in situations where there is a general economic downturn such as the world has experienced in the last two years. This article evaluates empirically the perceived impact of the Global Financial Crisis on the opportunities for rescue on the basis of a survey we set out among insolvency professionals worldwide. Most of the 562 respondents to the survey from 56 jurisdictions agree that the credit crisis of 2007 stifled the access of distressed business to financial facilities so needed for successful restructuring. It retrenched the access to financial facilities and thus impacted negatively the prospects for preventing or even ending the bankruptcy procedure with reorganization instead of winding up of the estate assets. Several reasons that have been pointed out by the insolvency professionals in our survey are discussed in this article. We conclude that somewhat paradoxically just when rescue is needed the most, the practical reality may be that businesses will not be saved if there is insufficient support available either by way of additional credit or because other (funding) creditors are so financially stressed themselves that they are unable or unwilling to support any potential rescue. Copyright © 2010 John Wiley & Sons, Ltd.     

Herbal Pharma Inc.: Conducting an Effective Group Audit*

As the relative weight of global economic activity continues to shift toward non-OECD countries (OECD 2018), audit firms are more likely to encounter clients with significant business operations in foreign jurisdictions. The associated need to engage and oversee local component auditors in these jurisdictions can lead to challenges arising from different business cultures and the resulting intra-audit miscommunications. Audit deficiencies related to these challenges have been detected by regulators (PCAOB 2011, 2010; CPAB 2012, 2015). Standard setters such as the IAASB and the Auditing and Assurance Standards Board (AASB) have responded by issuing an exposure draft proposing revisions to ISA 600 (IAASB 2020) and CAS 600 (AASB 2020) to strengthen the auditor's approach and provide enhanced guidance to practitioners. In light of this evolving area of assurance, this case was developed to deepen students' understanding of both group and component audits in an international context. The case takes the perspective of the group auditor and features an audit senior in a specialized role overseeing the component audit of a client's increasingly material Chinese subsidiary. Deficiencies in the prior year component audit, along with a change in the component auditor, further underlines the importance of robust risk analysis for the upcoming engagement.     

Peer-to-Peer-Absicherung privater Risiken: Eine Exploration am Beispiel von Wildschaden

This paper examines the extent to which business model development is an effective method of surmounting market failure in the insurance industry. In particular, it endeavours to demonstrate that replacing the traditional relationship between the insured and the insurer with a bilateral agreement opens up new markets, thus enabling hitherto non-insurable risks to be covered by new peer-to-peer business models. The insurance against risks caused by wild animals was chosen as the empirical field, since it is known to be an area which exhibits market failure. Based on 16 episodic interviews with representatives of the hunting community, demand structures and relevant contextual factors are revealed and analysed in terms of risk coverage and claims management among community members. This paper thus proposes an alternative position to that of the traditional insurance business, in which cover is based on a large and diversified risk group.     

Chasing assets abroad: Ideas for more effective asset tracing and recovery in cross-border insolvency

Asset tracing and recovery (ATR) has become highly challenging in the digital age, where, with the touch of computer keys, assets can be shifted through multiple jurisdictions within minutes, creating significant challenges for recovering value. While many countries have tools to enable ATR, these tools differ from jurisdiction to jurisdiction and often are not recognized across borders in a manner that keeps pace with the need for rapid ATR, particularly during insolvency. This article takes stock of the myriad ATR tools available in domestic systems to discern parameters of key ATR tools that have common objectives, features, and safeguards, and that can form the basis of more standardized understanding and application of such tools. It also explores the extent to which cross-border ATR is aided by the leading frameworks for global, cross-border insolvency—the UNCITRAL Model Laws on Cross-Border Insolvency, insolvency-related judgments, and enterprise groups—in the process, revealing gaps and uncertainties. Such uncertainties can result in losses to stakeholders affected by insolvencies of different business sizes but can be particularly detrimental in small and medium enterprise (SME) cross-border insolvencies where there are typically more limited resources to chase assets. Against this backdrop, this article proposes ideas for the enhancement of the cross-border insolvency framework, to allow for effective cross-border access to information held abroad, the freezing of assets in cross-border cases, and the cross-border recovery of assets.     

Keeping secrets? Or what government performance auditors might not need to know

This paper examines the claims made in a recent paper in Critical Perspectives on Accounting by Vaughan Radcliffe about the way in which public sector auditors report their findings. Drawing upon the work of Taussig, he argues that while public sector auditors may know the truth, as may others, they choose not always to tell the truth in their reports and instead to treat what may be publicly unpalatable as a public secret. They modify their findings to ensure that these will be more acceptable to governments and, thereby, enhance their opportunity to influence government. These claims are shown in this paper to overstate the public sector auditor's response to difficult issues. Rather than keeping secrets, the contents of the auditor's reports may instead reflect the constitutional and institutional limitations in which they must work. Most importantly in most jurisdictions they are not to comment on matters of policy which are the domain of the government.     

徐林：探索负责任的绿色投资创新模式

中美绿色基金的纯市场化运作的“产业+技术+金融+国际”的投资模式值得推崇。他们的创新不仅体现在对商业模式的创新,还体现在对绿色效益的评估。他们力求在一个项目或企业的基本商业模式或技术得到市场验证、处于加快发展拐点时进行投资,通过投资推动企业得到新的赋能,实现企业更加高速的成长和价值提升。从国家职能部门顶层设计的金字塔尖走向市场化的接地气的股权投资基金,中美绿色基金董事长徐林先生成为由规则走向实施的探索者。     

Claims against negligent or fraudulent directors: proposed amendments to South African legislation

Numerous jurisdictions provide for statutory civil liability of directors should they make themselves guilty of managing the business of a company in a reckless, wrongful or fraudulent manner or engage in insolvent trading. Such provisions can play an important role in protecting the interests of corporate creditors, provided that they are properly formulated. This contribution attempts to determine whether the interests of corporate creditors are adequately protected in terms of such provisions. In South Africa, directors' civil and criminal liability for reckless or fraudulent trading is currently provided for in terms of section 424 of the South African Companies Act. Civil liability of those engaged in knowingly taking part in managing the business of the company fraudulently or recklessly is provided for in terms of subsection (1). However, an analysis of case law on the interpretation of section 424(1) reveals that there are numerous uncertainties regarding the application of this provision. Similar provisions in other jurisdictions also display a number of shortcomings. South African company law has just undergone an extensive review, however, and a Draft Companies Bill of 5 February 2007 was recently published for public comment. The liability of directors for reckless or fraudulent trading is provided for in terms of the proposed section 93(2)(b) of the Draft Companies Bill. A comparison between section 424(1) and section 93(2)(b) indicates that some of the uncertainties that exist in terms of section 424(1) may be resolved by the new provision. Unfortunately, the proposed section 93(2)(b) raises some of its own questions and would furthermore seem to offer more limited protection than section 424(1) in certain respects. This unfortunate occurrence will detract from the protection that provisions such as these could afford to the interests of corporate creditors and it is submitted that such provisions should be drafted with great care. Copyright © 2007 John Wiley & Sons, Ltd.     

Accrual Output‐Based Budgeting Systems in Australia — A Great Leap Backwards?

The widespread and increasing adoption of accrual output-based budgeting (AOBB) systems has often been preceded by considerable rhetorical fanfare. However, little convincing evidence has been produced to support claims made in favour of this budgeting technique. This paper argues that idealised portrayals of AOBB systems are unlikely to reflect operational reality, and that there are grounds for concern that in some jurisdictions what is painted as a reform may in fact be a retrograde step.     

Accrual Output-Based Budgeting Systems in Australia — A Great Leap Backwards?

The widespread and increasing adoption of accrual output-based budgeting (AOBB) systems has often been preceded by considerable rhetorical fanfare. However, little convincing evidence has been produced to support claims made in favour of this budgeting technique. This paper argues that idealised portrayals of AOBB systems are unlikely to reflect operational reality, and that there are grounds for concern that in some jurisdictions what is painted as a reform may in fact be a retrograde step.     

Technically the king can do wrong in reorganizing insolvent corporations: evidence from Canada

Taken together the international move from liquidation to reorganization‐based bankruptcy regimes and the international move to abolish Crown priority in bankruptcy provide Canada with an opportunity to rethink Crown priority in bankruptcy. This paper makes the case that abolishing Crown priority in bankruptcy in Canada is optimal given a revaluation of traditional normative claims surrounding Crown priority in the context of a bankruptcy system that favours reorganization when possible. While this paper focuses on Canada, it engages in a normative assessment that may be useful for possible reforms to Crown priority in the United States and in other jurisdictions that, like Canada, have been influenced, not only by the English model, but also by the American bankruptcy and reorganization system. Copyright © 2004 John Wiley & Sons, Ltd.     

Mobile people, mobile capital and tax neutrality: Sustaining a market for Offshore Finance Centres

This paper examines the self-reported effects on business performance, sustainability and confidence following international initiatives to regulate Offshore Finance Centres (OFCs). Since the late 1990s small countries and territories have been encouraged and pressured by multilateral organisations and supranational institutions to exchange information on civil and criminal tax matters. Interview based research in Australia, Andorra, Guernsey, Samoa and Singapore has been carried out to determine how OFC clients have reacted to these initiatives along with their impacts on the offshore sector, including local economies and societies. This paper shows that these international programs have caused contraction and reorganisation in leading OFCs. However, their diverse clientele and access to established markets for global financial services continues to make them attractive locales for fund management, trusts, captive insurance and private banking. The effects on OFCs located in smaller, developing countries have been much more severe, with reports that these jurisdictions are facing major problems sustaining a share of the worldwide market for financial services and products. This suggests that because of the uneven consequences of international efforts to regulate offshore finance in selected jurisdictions, these initiatives may actually increase tax competition rather than reduce it, at least in the short term. For multilateral policies to be effective, it may well be necessary for wealthy and poor nations, including OFCs (which include some of the world's poorest and wealthiest jurisdictions) to determine if tax competition contributes to or ameliorates the inconsistencies and contradictions of globalisation and the uneven development that it produces on a worldwide scale.     

Enhancing the competitiveness and sustainability of social enterprises in Hong Kong: A three-dimensional analysis

Running a social enterprise (SE) is more difficult than running a small or medium-sized enterprise because SEs have to achieve both economic sustainability as business enterprises and their social mission for the benefit of society. After a few years of operation, many SEs fail or struggle for survival. In this study, we examine some of the factors that affect an SE’s profitability, financial management, and business planning and management. Based on in-depth interviews with 22 social enterprises in Hong Kong, we find that SEs with the dual investment objectives of social mission and financial return are more sustainable and competitive than SEs with social impact as their sole objective. Furthermore, SEs managed by non-owner managers have better financial planning and performance than those managed by owner managers. In addition, SEs with an oversight/advisory committee are more competitive and have better management practices than those without such a committee. Our findings have policy implications for government, SEs, funding bodies, and non-profit organizations to enhance and promote the development of the social enterprise sector.     

Option Valuation and Hedging Strategies with Jumps in the Volatility of Asset Returns

We develop a model in which the volatility of risky assets is subject to random and discontinuous shifts over time. We derive prices of claims contingent on such assets and analyze options-based trading strategies to hedge against the risk of jumps in the return volatility. Unsystematic and systematic events such as takeovers, major changes in business plans, or shifts in economic policy regimes may drastically alter firms' risk profiles. Our model captures the effect of such events on options markets.     

Enterprise Resource Planning Systems — Implications for Managers and Management

Enterprise resource planning systems have been adopted by many businesses, large and small, to take advantage of their typical features: information integration, business process perspective, transaction processing efficiency and instantaneous availability of information for decision support. The systems are expected to affect almost every aspect of business including structures, procedures, supervision, decision-making, performance and workloads, and the roles of functional and professional groups such as engineers, accountants, production and warehousing personnel and managers. This paper analyses the implications of enterprise resource planning systems for organisations in general and for managers and professionals in particular.     

CAP Forum on E‐Business: Compromise or Customize: XBRL's Paradoxical Power

Business reports are changing in response to regulatory and market demands. Requests by regulators for electronic filings of financial statements and tax forms are increasing and such filings are rapidly becoming mandatory in many countries. In response, extensible business reporting language (XBRL) is a market‐driven, collaborative effort to make electronic filings more useful to, and to reduce the burden on, both publishers and consumers of business reports. XBRL does much more than simply list data items that can be submitted in an electronic filing. XBRL is a complete set of tools for regulators or groups to fully communicate the meanings of and interrelationships among the business reporting concepts. In addition, core sets of concepts from regulators or groups can be extended, expanded, or otherwise modified for more specific communication by jurisdictions, industries, or individual corporations. This unique customization capability lets companies better present their electronic filings as parallels to their paper filings. A “customizable standard” offers new opportunities and new challenges. This paper discusses XBRL's paradoxical power ‐ the trade‐offs between customizing to better parallel existing paper reports and compromising to more closely match the standards, and the research needed for the transition from freeform to customized reports.     

Public or private gatekeepers in non-consensual debt restructurings in emerging jurisdictions

In advanced jurisdictions, the choice of a non-consensual debt restructuring is between a public or a private gatekeeper model where either the court or the licensed insolvency professional respectively approves a restructuring plan that binds dissenting creditors. In the United States, the only gateway is found in Chapter 11 of the Bankruptcy Code 1978, which requires court approval and gives the debtor a significant say in the outcome. In contrast, in the United Kingdom, there exist four gateways, only two of which require court approval (scheme of arrangement and restructuring plan), while the remaining two (administration and company voluntary arrangement) give significant powers to the insolvency practitioner to decide on the outcome. In emerging jurisdictions such as Mainland China and India, due to path dependency and lack of institutional capacity, the court-supervised model is chosen as the only or primary gateway to legitimise non-consensual restructurings though the insolvency practitioner has an important statutory role. Using the two jurisdictions as case studies, this article argues that such a choice has several initial benefits but also leads to several problems, including delays in the restructuring, does not necessarily improve substantive outcomes and does not adequately address the shareholder–creditor and creditor–creditor agency costs. This article proposes that for debt restructuring that involves the sale of the business as a going concern, the private gatekeeper should be able to decide on the sale and the distributions following pre-bankruptcy entitlements. Recourse to the court as a public gatekeeper should only be used for reorganisation proceedings.     

From subordination to parity: an international comparison of equity securities law claims in insolvency proceedings

Securities law claims in insolvency proceedings raise important questions of allocation of risk and remedies. In the ordinary course of business, equity claims come last in the hierarchy of claims during insolvency. What is less clear is whether this should encompass claims arising from the violation of public statutes designed to protect equity investors. Discerning the optimal allocation of risk is a complex challenge if one is trying to maximize the simultaneous advancement of securities law and insolvency law public policy goals. From a securities law perspective, there must be confidence in meaningful remedies for capital markets violations if investors are to continue to invest. From an insolvency perspective, creditors make their pricing and credit availability choices based on certainty regarding their claims and shifting those priorities may affect the availability of credit. The critical question is the nature of the claim advanced by the securities holder and whether subordination of securities law claims gives rise to inappropriate incentives for corporate officers within the insolvency law regime. A comparative analysis reveals that the U.S. has provided a limited statutory exception to complete subordination through the fair funds provision of the Sarbanes-Oxley Act by allowing SEC claims for penalties and disgorgement to rank equally with unsecured claims even though the funds are distributed to shareholders. The U.K. and Australian schemes permit shareholders to claim directly as unsecured creditors for fraudulent acts and misrepresentation by the issuer. In contrast, Canadian law is underdeveloped in its treatment of such claims. The paper canvasses the policy options available to reconcile securities law and insolvency law claims, including a discussion of the appropriate gatekeeping role for regulatory authorities and the courts, and the need for a framework that offers fair and expeditious resolution of such claims. If the public policy goal of both securities law and insolvency law is to foster efficient and cost-effective capital markets, it seems that the systems need to be better reconciled than currently. The paper also examines the codified response to the time and resources consumed in various common law tracing claims by customers in a securities firm insolvency. Copyright © 2007 John Wiley & Sons, Ltd.     

Treatment of a Debtor's Home in Insolvency: Comparative Perspectives and Potential Developments in South Africa

A debtor's home is frequently a source of conflict between the debtor and his family members and his creditors. Treatment of forced sale of a debtor's home is not uniform. Some legal systems provide for formal, statutory ‘homestead exemptions’ the monetary limits of which are in many cases capped. In a number of jurisdictions, statutory provisions regulating, inter alia, the civil process, family law, bankruptcy law, or the recognition of human rights afford a measure of protection to the debtor and his family. This occurs either through the imposition of procedural requirements before forced sale is allowed or protecting the interest in the home or the occupational rights of a spouse or partner of the debtor against creditors' claims, or by delaying the forced sale of the home in certain circumstances. Recently, in South Africa, recognition by the courts of every person's constitutional right to have access to adequate housing has impacted upon the substantive and procedural requirements for execution against a debtor's home. However, no consideration has been given to whether realisation of an insolvent debtor's home by the trustee of an insolvent estate in terms of the Insolvency Act 24 of 1936 involves similar constitutional imperatives. Consideration of the treatment of a debtor's home, especially in the context of insolvency, in various jurisdictions may provide valuable guidance for future developments in South Africa. Copyright © 2013 INSOL International and John Wiley & Sons, Ltd.     

金字塔结构、业绩波动与信用风险

本文以手工收集的金字塔层级数据为基础,研究企业集团内部企业"地位"与业绩波动的关系以及银行信贷决策是否考查企业的业绩波动。我们的实证研究表明企业处在金字塔越低端,业绩波动越大;企业的国有属性能降低金字塔层级与业绩波动的关系;业绩波动越大,获得的银行贷款越少。用Heckman(1979)解决自选择问题后,以上结论依然成立。本文不仅丰富了金字塔结构经济后果的文献,还对企业的信用风险管理和银行信贷决策有一定帮助。