Financing structure and insolvency risk exposure of Islamic banks

This study analyzes the impact of financing structure on Islamic banks’ insolvency risk exposure. By analyzing four models, we find that an increase in real estate financing decreases insolvency risk; however, an increasing concentration of financing structure increases insolvency risk. We discover that increasing the stability of the financing structure reduces risk in the short term, but not in the medium term. Interestingly, our findings show that the level of insolvency risk exposure during the 1997 Asian financial crisis was lower than it was for the overall period, whereas it is higher than the overall average in the ongoing global economic crisis. Thus, regulatory bodies, policymakers, and market players in the Islamic banking industry should take appropriate action to in manage the insolvency risk of Islamic banks.     

Assessing the Assessments

They said of the July 1997 Asian regional financial crisis that ‘…it could never happen again’. They were right. There has not been another regional crisis—just an international one! This paper owes its origins to the Asian financial crisis. The crisis sparked the development of an assessment model for the evaluation of insolvency laws. The paper reviews the considerable developments in this area, commencing with the pioneering work of the Asian Development Bank in the aftermath of the Asian financial crisis in 1997 and culminating in the, now, quite established triennial practice of the European Bank for Reconstruction and Development (EBRD) in its assessment of the insolvency laws of its ‘countries of operation’. Along the way, mention is also made of the development and application of the World Bank ‘Principles’ and the United Nations Commission on International Trade Law Legislative Guide for Insolvency Law. All of these diagnostic tools have been variously employed in an endeavour to provide a fair and acceptable basis for evaluating an insolvency law. The paper draws comparisons from these tools and concludes that there is a considerable degree of correlation between them, such that approaches taken in 1998 have remained much the same to this time. The EBRD assessment programme is singled out for fuller analysis. It was developed with the benefit of the earlier assessment models and is consistently used as a means of tracking the development of insolvency laws. Accordingly, the paper presents the survey questionnaire on which the EBRD assessment is based, explains the methodology behind it and presents the results of the last of such assessments (2009). It invites an examination of the bases on which the EBRD assessments are undertaken and whether the approach is sufficiently broad, objective and fair and its use in possibly creating aspirations for reform. One purpose of the paper is to capture and record the historical origins and development of the assessment models before it all becomes lost in the passage of time. The paper also advances the use of the EBRD assessment model as a teaching tool in courses in comparative and international insolvency law. Copyright © 2014 INSOL International and John Wiley & Sons, Ltd     

Predatory trading,Stigma and the Fed׳s Term Auction Facility

Predatory trading may affect the incentives for banks to raise liquidity in times of financial distress. In these periods, borrowing becomes a signal of illiquidity, exposing borrowers to predatory trading and possible insolvency. A stigma of borrowing thus arises, leading distressed banks to take on more illiquid positions than they would otherwise. The Fed׳s Term Auction Facility (TAF) can alleviate this problem. The TAF׳s competitive auction format allows auction winners to signal that they are illiquid but relatively strong. The TAF may therefore be an effective policy tool during financial crises: by altering the signal value of borrowing, this facility supports the injection of liquidity into distressed banks. In normal times, however, this auction facility becomes counterproductive: by cream-skimming the relatively strong banks, the weakest banks are left as potential prey for predators. This suggests that the TAF is a policy best reserved for times of crisis.     

Aftermath of banking crises: Effects on real and monetary variables

This paper models the effects of a banking crisis, and in particular distinguishes between a short-term crisis, such as a banking panic, and a longer-term crisis, such as a banking insolvency. Using an optimizing framework, it shows that depositors shift from deposits into cash in both types of crises, which results in an increase in the interest rates on deposits and loans, and a contraction in output and consumption. However, when the crisis is resolved in a finite time period, there is an intertemporal substitution of consumption, and consumption is postponed until the crisis is resolved. This in turn results in a further decline in the demand for money, availability of credit and output.     

Governance and bank characteristics in the credit and sovereign debt crises – the impact of CEO power

The global financial sector recently suffered from two interrelated crises: the credit crisis and the sovereign debt crisis. A common question is whether the recent experience with the credit crisis has helped in dealing with the sovereign debt crisis. We study more specifically whether banks with powerful CEOs perform better or worse than other banks, and if there is any difference in this relationship between the two crises. Using unique hand-collected data for 378 large global banks, we find that CEO power has a significant positive relation to bank profitability and asset quality, but also to insolvency risk, during the sovereign debt crisis. Thus, strong CEOs do not appear to be detrimental to bank performance. Our results also support the idea that deposit insurance may have contributed to the credit crisis.     

Capital adequacy rules, catastrophic firm failure, and systemic risk

This paper studies capital adequacy rules based on Value-at-Risk (VaR), leverage ratios, and stress testing. VaR is the basis of Basel II, and all three approaches are proposed in Basel III. This paper makes three contributions to the literature. First, we prove that these three rules provide an incentive to increase the probability of catastrophic financial institution failure. Collectively, these rules provide an incentive to increase (not decrease) systemic risk. Second, we argue that an unintended consequence of the Basel II VaR capital adequacy rules was the 2007 credit crisis. Third, we argue that to reduce systemic risk, a new capital adequacy rule is needed. One that is based on a risk measure related to the conditional expected loss given insolvency.     

Destructive effects of constructive ambiguity in risky times

Unclear bailout policy, underinvestment and calls for greater responsibility by bankers are some of the observations from the recent financial crisis. The paper explains underinvestment as an inefficient equilibrium. Under ambiguous bailout policy agents suffer from a lack of information about the insolvency resolution methods. The beliefs of bankers regarding whether an insolvent bank is liquidated, may differ from those of depositors even if bankers and depositors possess absolutely symmetric information about the economy. This disrupts the flow of funds through the banking channel if the investment climate is characterized by high aggregate risk. The paper suggests policy implications aimed at a reduction of the anxiety of agents and at aligning their beliefs to restore efficiency.     

An empirical evaluation of alternative fundamental models of credit spreads

This study conducts an empirical comparison of how well alternative models of credit spreads explain CDS prices on 145 companies over the 2008–2019 interval. The results indicate that credit spreads are most closely related to theories which incorporate the likelihood of income insolvency into measures of the risk of jumps to default, with over half of individual CDS prices being explained, both during the financial crisis and thereafter. Out-of-sample tests using the same parameters estimated in-sample for all companies across time indicate that models which integrate the probability of income, cash, and valuation insolvency explain over 70% of spreads.     

Challenges for a mature insolvency system in a transitional economy: Lessons from Croatia

Being a post‐communist, central‐eastern economy, Croatia and its insolvency system resembles many transitional countries in the region. In order to achieve a better perspective of the current situation, problems, and their possible solutions, a broad research of the Croatian insolvency system was carried out. Questionnaires were sent out to bankruptcy practitioners, interviews with some of the most experienced experts in the field were performed, and extensive databases have been obtained. The findings show a high level of tolerance of government institutions towards insolvency, making insolvency procedure in practice non‐compulsory even though the Corporations law (Article 626) proclaims non‐filing as punishable, with the penalties rising up to 2 years of imprisonment. As the data present, filing for bankruptcy does not necessarily have to be expected even in the case of long‐term (over 1 year) insolvency. This tolerance was present long before the recession and the global crisis of the late 2000s began. Copyright © 2010 John Wiley & Sons, Ltd.     

Conflicts of interest,intra‐group financing and procedural coordination of group insolvencies

Modern insolvency law instruments recognise the specificity of enterprise group insolvencies, premised on the existence of close operational and financial links between group members. It is widely accepted that maximisation of insolvency estate value and procedural efficiency depend on coordination of insolvency proceedings opened with respect to group entities. Such coordination is prescribed in the European Insolvency Regulation (recast), the United Nations Commission on International Trade Law (UNCITRAL) Model Law on Enterprise Group Insolvency and the recently reformed German insolvency law. Yet in insolvency, group members retain their own insolvency estates and pools of creditors. This is based on the traditional company law principle of entity shielding. Active communication and cooperation between insolvency practitioners and courts do not sit well with the separate (atomistic) nature of insolvency proceedings, as well as different and oftentimes conflicting interests of creditors in such proceedings. As a result, communication and cooperation may be restricted in a situation of conflicts of interest. This article explores how in the context of group distress the risks arising from conflicts of interest can be controlled and mitigated, while ensuring efficient cross‐border cooperation and communication to the maximum extent possible. It analyses three cutting‐edge coordination mechanisms, namely (a) cross‐border insolvency agreements or protocols, (b) special (group coordination and planning) proceedings and (c) the appointment of a single insolvency practitioner. It concludes that both the likelihood and significance of conflicts of interest correlate with the degree of procedural coordination. Therefore, conflict mitigation tools and strategies need to be tailor‐made and targeted at a specific level and coordination mechanism.     

Private Equity,Buy‐outs and Insolvency Risk

Private equity restructuring using debt has been criticized for increasing financial distress and bankruptcy especially following the financial crisis. We build a unique dataset comprising the population of over 9 million firm‐year observations and 153,000 insolvencies during the period 1995–2010. We compare the insolvency hazard of the spectrum of buy‐out types within the corporate population over time and investigate the risk profile of the companies pre‐buy‐out. Controlling for size, age, sector and macro‐economic conditions, private‐equity backed buy‐outs are no more prone to insolvency than non‐buy‐outs or other types of management buy‐ins. Moreover, leverage is not the characteristic that distinguishes failed buy‐outs from those surviving.     

“Too big to fail”? The Agrokor case and its impact on West Balkan economies

From about April 2017, Agrokor became the main economic topic in the Balkans. Once the greatest pride of the Croatian economy, it became a serious problem for its government. Its systemic importance for the country and the region required an immediate legislative solution. The Government had Parliament pass a special law intended to save this company. The special law on the procedure of extraordinary administration in companies of systemic importance adopted in April 2017 is an interesting example, because it introduced a new insolvency procedure titled “extraordinary administration” clearly following the example of the Italian Legge Marzano, which was adopted in order to save the Parmalat group in 2003. It also represents an example of a collision of legislation in the case of cross‐border insolvency proceedings inside and outside of the European Union, where different jurisdictions have diverging standpoints on the question of its recognition as a foreign insolvency procedure. However, once the rescue proceedings began, numerous (and some dubious) interests of the different stakeholders came to the light. The government tried not only to rescue the company and its assets throughout the Balkans region but also to acquire control of it. This was especially visible through the prerogatives of the extraordinary commissioner, formally appointed by the court, but in fact a government official. Creditors at risk, mainly Russian and Italian banks, filed lawsuits to prevent the selling of the debtor's assets. At the end, the majority creditors called to vote on the settlement agreement became the new owners of the company. However, Agrokor is still far from the end of the crisis. It has more than 60,000 employees in the region and their destiny depends on the outcome of the crisis. In more recent times, the case also revealed major political scandals.     

Which financial stocks did short sellers target in the subprime crisis?

Tracing the SEC ban on the short selling of financial stocks in September 2008, this paper investigates whether such selling activity before the 2008 short ban reflected financial companies’ risk exposure in the subprime crisis. Evidence suggests that short sellers sold short stocks that had the greatest asset and insolvency risk exposures, and that the short selling of financial firms’ stocks was not significantly greater than that of non-financial firms after we match them on firm size and insolvency risk. When the short ban was in effect, the market quality of financial stocks without subprime assets exposure had deteriorated to a larger degree than that of financial companies with subprime assets exposure. The findings imply that such a regulation may mute the market disciplining effects of investors and may also be seen as a counterweight to any perceived macro or systemic risk reduction benefits resulting from such a ban.     

Cross-border insolvency law in India: Are the principles of comity of courts and inherent common law jurisdiction relevant?

Deliberations are in the final stages for enacting a cross-border insolvency law in India based on the UNCITRAL Model Law on Cross Border Insolvency 1997 (‘Model Law’). The cross-border insolvency regime in India will provide an avenue for recognising foreign insolvency proceedings in India. Although it is a matter of time before India adopts the Model Law, it is important to examine whether there remains an independent basis in addition to the Model Law for recognising and providing assistance to cross-border insolvency proceedings in India. This is crucial on account of the following reasons: first, the Model Law does not provide that it is the exclusive pathway for foreign creditors to seek remedies under domestic law. The Model Law, as reflected in Article 7, was intended by its drafters to be an additional gateway to those provided under local laws. The proposed Indian law in Article 5 of Draft Part Z of the Insolvency and Bankruptcy Code 2016 also does not depart expressly from this principle. Second, there may be instances where neither the ‘Centre of Main Interests’ nor an establishment of a corporate debtor is situated in India; therefore, assistance and cooperation in respect of such cross-border insolvency proceeding can only be based on the inherent common law jurisdiction, if available. Third, the cross-border insolvency framework in India will be premised on the requirement for reciprocity and, therefore, countries that do not meet the reciprocity requirement may find it beneficial if such an independent basis for recognition exists in India. This article argues that foreign representatives should be encouraged to explore the possibility of seeking assistance from the commercial courts in India under the common law principles governing cross-border insolvency and that the courts in India should be open to this possibility.     

The global financial crisis and the evolution of markets, institutions and regulation

This paper analyses the recent global financial crisis in the context of the dual processes of market development and regulation. It discusses how, in the absence of a globally integrated financial framework, past and present regulations and interventions in reaction to national and global financial crises did not resolve the cross border regulatory arbitrage. The paper discusses how crises often lead to the emergence of new national and international institutions. It also analyses the proposed “new global framework” that needs to be in place if the policy recommendations contained in the G20 communiqué are going to be effectively implemented. The paper argues that unless international agreements are ratified by all nations and become part of national rules and laws, the presence of regulatory arbitrage and the lack of adequate cross border information and data may prevent the global economy from addressing the underlying causes of the recent global financial crisis. The paper also discusses the evolution of central banks and their new role in contributing to global financial stability. The paper argues that the recent global financial crisis has provided a unique opportunity to go beyond economic data and attempt to capture cross border financial data and other information that could assist international and national institutions to measure and manage financial risk more effectively. Finally, the paper discusses “too big to fail” and argues that only an internationally integrated financial system will make large banks global, both when operational and in the event of insolvency.     

A case of constitutional apples and oranges: a functional comparison of pension priority and benefit guarantees in U.S., U.K. and Canadian insolvency and pension law regimes

Canada's insolvency law reform increased the priority granted to employer‐sponsored pension claims. The article compares the treatment of such claims in the U.S., the U.K. and Canada. A comparison of the legislative provisions concerning pension funding shortfalls from contribution arrears or economic underperformance in relation to the assumptions used for investment income or liability valuations finds that insolvency law has been used to address contribution arrears, but risks from economic underperformance have been addressed by pension benefit insurance. Post‐insolvency priority for contribution arrears provides appropriate incentives to discourage pre‐insolvency preferences for payments to other creditors, while shortfalls from economic underperformance do not involve issues of preference between creditors. The absence of any insolvency rationale for changing priority for shortfalls from economic underperformance and the likely disparity between the assets available to satisfy clams and the much larger amounts of such shortfalls makes the use of insolvency law to address this risk much less effective than insurance. Canada, however, has not adopted the insurance policy instrument used in the U.S. and U.K. to mitigate the impact of pension funding shortfalls. The constitutional inability of Canada to legislate in respect of matters of pension regulation that would allow it to control the well‐known insurance problems of moral hazard and adverse selection may explain why it has only chosen to adopt an insolvency policy instrument. However, a change in priorities in insolvency may generate incentives for secured creditors that either undermine or reinforce this policy choice. Secured creditors could attempt to circumvent the new priority scheme through private arrangements with the debtor or to increase their monitoring activities to ensure the debtor is current in its pension contributions. Secured creditors choices will be influenced by the bankruptcy courts' interpretation of the preference provisions in the insolvency legislation. Copyright © 2009 John Wiley & Sons, Ltd.     

Zombie companies in China in the COVID-19 era

COVID-19 poses novel sources of uncertainty and risk to companies, but it also offers many opportunities. In the COVID-19 era, unprecedented government and central bank interventions to tackle the economic crisis precipitated by the pandemic have reinvigorated the debate on the threat of a zombification of the economy in China, caused by unviable companies being kept alive artificially. This particular consequence of COVID-19 may aggravate the economic problem of zombie companies in China, increase the risk of further zombification, and create new zombie companies. Recognizing the risk factors of zombie companies and revisiting corporate insolvency law in China, this article aims to address a gap in knowledge related to how zombie companies are being handled in practice in China in the era of the pandemic. In particular, we will investigate the definition, recognition, and uniqueness of zombie companies in the context of COVID-19, and propose several policy actions, primarily through Chinese insolvency law, to mitigate the risk of the return of zombie companies or a further zombification of the economy. It is anticipated that these measures will help to enhance China's sustainable economic recovery in the wake of the COVID-19 pandemic.     

Valuation of cryptoassets in EU insolvency: Challenges and prospects

How and when to determine the value of cryptoassets in insolvency proceedings? This question becomes more topical with the increasing adoption of volatile cryptoassets such as Bitcoin. As many of these assets do not have an ‘apparent’ value that may be readily ascertainable, it is not always clear how their value may be established. This presents significant challenges to their proper valuation in the context of insolvency proceedings and requires certain attention to efficiently confront the implications on the assessment of claims, the calculation of their value and the determination of the recoverable amount. Accordingly, this Article exposes the arising challenges and implications from an EU insolvency perspective, with the aim to trigger considerations for legislative interventions at EU level.     

Rights in rem,Article 5 and the EC Insolvency Regulation: an English perspective

The treatment of security interests is central to any insolvency régime, national or transnational. Under Article 5 of the EC Regulation on Insolvency Proceedings (E.C. 1346/2000) extensive protection is given to a security interest—or right in rem—over assets of the debtor situate in a Member State other than one in which insolvency proceedings have been opened. The absence, thus far, of any significant body of European case law on Article 5, allows commentators to put forward a range of views on how Article 5 ought to be applied. This article aims to examine the scope of Article 5 protection both conceptually and in terms of illustrations drawn largely from English insolvency law and practice. Particular attention is given to the following issues: what is meant by the ‘opening of insolvency proceedings’ with reference to Article 5; when a liquidator may pay off the holder of a right in rem; whether the rules under the Regulation for determining the situs of an asset alter the English common law position; whether Article 5 prohibits the discharge of an underlying debt by way of a restructuring plan; the position of unsecured creditors who attempt to acquire rights in rem prior to the opening of insolvency proceedings; and whether the English court's equitable jurisdiction to enforce a charge which does not comply with the lex situs, survives the coming into force of the Regulation. Through the discussion of these topics, this article seeks to identify an approach to the interpretation of Article 5 which is consistent not only across the wide range of issues identified but also with the broad policy objectives underlying the treatment of in rem rights in the Regulation. Copyright © 2006 John Wiley & Sons, Ltd.     

The Future Direction of China's Cross‐border Insolvency Laws,Related Issues and Potential Problems

The enactment of bankruptcy laws by the People's Republic of China (PRC or China) in 2006 was a necessary step in the development of its economy. This law represented a significant modernisation of the insolvency framework, supporting the transforming economy, but it was also a law of political expediency, for the enhancement of external relations. One aspect of the enhancement of external relations was the provision of cross‐border insolvency rules. However, this complex area of law was addressed in only one article, which was only a starting point, leaving many details unaddressed, and further reforms are required. In particular, it is desirable that the law provides a greater level of predictability as to the likely outcomes of cross‐border insolvencies, to encourage inward trade and investment, as well as encourage external trade. Both inbound and outbound business dealings are important to China's continued economic development. It is clear also, however, that insolvency law and practice is still a developing area for China. The establishment of a modern and unified system of insolvency laws was a big step for China, representing a sacrifice of tight controls on insolvencies, but the impact of this law in practice is only recently developing, with a loosening of state controls, after a very slow start. 1 The establishment of a cross‐border insolvency framework represents a further challenge; one that is likely to beset with considerable difficulties, as any further development of this law would potentially entail some further loss of control over proceedings, not least in outbound cases, and resistance may be anticipated. In keeping with China's historical approach to lawmaking in the area of bankruptcy law, it is likely that the cross‐border insolvency framework will develop gradually and with caution. This article assesses the way forward in respect of cross‐border insolvency laws, contending that an incremental approach over a period of years, in three broad stages, is required, with more developed and country‐specific approaches providing a link, or interim stage, between the clarification of the Article 5 and the formal adoption of the United Nations Commission on International Trade Law Model Law on Cross‐Border Insolvency Proceedings 1997 (Model Law) in China. Copyright © 2018 INSOL International and John Wiley & Sons, Ltd.