Role of Insolvency Practitioners in the UK Pre‐pack Administrations: Challenges and Control

The pre‐pack administrations (‘pre‐packs’) in the UK have repeatedly been criticised for allowing the exploitation of certain types of unsecured creditors. In this context, the role of the administrators (who are qualified insolvency practitioners) is one of the key elements. This article examines the new challenges brought by the pre‐pack strategy to the conventional role of insolvency practitioners as the administrators. It suggests that the pre‐determination nature of pre‐packs is likely to make the administration proceedings less manager‐displacing in practice than the formal rules would suggest. Although this tendency can be expected to facilitate information gathering during the rescue negotiations, it raises urgent questions with respect to the potential alignment of interests between the inside players that may impair the impartiality of the administrators. In response to such challenges, the article argues that, in spite of the recent proposals of introducing drastic statutory regulation to control the controversy of the pre‐pack practice, a proportionate way is to see how the existing control mechanisms can contribute more in reinforcing the independence of administrators. Copyright © 2012 John Wiley & Sons, Ltd.     

Pre‐packin' in the UK

A pre‐pack administration is one where a deal has already been agreed prior to the company entering administration. The company's business will commonly be sold to the incumbent management team immediately the company is placed into administration. The business survives relatively intact but will have managed to jettison its unsecured debt. The business is saved and jobs are saved. The pre‐pack will usually require the support of the company's bankers. Recent research suggests that pre‐packs may constitute between 50% and 80% of all insolvent going concern sales. The UK version of a pre‐packaged administration appears to have been rare until the administration process under the Insolvency Act 1986 was significantly amended in 2002, permitting a company to be placed into administration without a court order. The UK version of pre‐packaged administration does not involve any plan being approved by different classes of creditor nor for the court to be involved in approving activities of the administrator before or after the plan is put into effect. The paper considers whether or not pre‐pack administrations fit into the statutory framework of the Insolvency Act, the professional ethics requirements of being an insolvency practitioner and the equitable rules governing fiduciaries. Some aspects of the policy underpinning pre‐packs are also considered in particular the decision to allow insolvency practitioners to claim pre‐appointment fees as an expense of the administration. This decision appears to herald a change in government policy. This policy change is also considered. Copyright © 2009 John Wiley & Sons, Ltd.     

The European Insolvency Regulation and the UNCITRAL Model Law on Cross‐Border Insolvency

This article compares the Recast European Insolvency Regulation of 2015 with the UNCITRAL Model Law on Cross‐Border Insolvency of 1997, focussed on their scope of application, international jurisdiction and the coordination of main and secondary proceedings. The scopes of both catalogues of norms and their rules on coordination of main and secondary insolvency proceedings reflect one another. However, the Recast EIR makes a significantly greater contribution to the unification of law and is also more fully differentiated and more precise, even if this comes at a price, namely, limited flexibility. The UNCITRAL Model Law made an important contribution to the harmonisation of international insolvency law but requires now modernisation. Copyright © 2017 INSOL International and John Wiley & Sons, Ltd.     

Cross‐border Insolvency and Legal Transnationalisation

The last 20 years has seen an explosion of approaches for dealing with an inevitable consequence of globalised markets, that of cross‐border insolvencies. This article places phenomena such as the United Nations Commission on International Trade Law Model Law on Cross‐border Insolvency and Cross‐border Insolvency Agreements (also known as Protocols) within the context of developing laws on international commercial transactions. First, it briefly describes the evolution of the international commercial law (sometimes known as the law merchant) to provide a context to understanding the international commercial responses to the problems created by cross‐border insolvencies. Next, it outlines the range of approaches being adopted by states and multilateral bodies in recent decades to resolve cross‐border insolvency issues. Finally it draws some preliminary conclusions on the potential implication of this transnationalisation process and broader international commercial law perspective, in particular on the capacity of cross‐border insolvency agreements to address cross‐border insolvency issues. Copyright © 2012 John Wiley & Sons, Ltd.     

Management Guidance Pre‐ and Post‐Restatement

We examine whether the quality of restating firms’ management guidance differs in periods before and after restatement announcements. While characteristics of restating firms and the consequences of restatement have been a central topic in accounting and auditing research, the quality of management guidance around restatements is less well understood. We consider two competing characterizations of the link between management forecast accuracy and bias and restatement (an event that tends to signal poor financial controls): “Forecast–Opportunism Explanation” and “Forecast–Ability Explanation”. Under the Forecast–Opportunism Explanation, pre‐restatement weaknesses in financial controls enable managers to manipulate earnings toward forecasts and to meet or exceed opportunistically biased forecasts, and the post‐restatement strengthening of financial controls constrains opportunistic behavior. Under the Forecast–Ability Explanation, pre‐restatement weaknesses in financial controls impede managers’ ability to issue accurate forecasts, and post‐restatement improvements remove impediments so that the accuracy of forecasts improves; forecast bias remains unaffected. Evidence indicates that before a restatement, restating firms’ forecasts are more accurate and relatively more downwardly biased than control firms’ forecasts. Post‐restatement, restating firms have less accurate and less downwardly biased management guidance. Our overall results are consistent with the Forecast–Opportunism Explanation.     

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.     

Pre‐Issuance Hedging of Fixed‐Rate Debt

This article analyzes several corporate hedging strategies to manage interest rate risk on fixed‐rate debt prior to issuance. The authors start by considering these strategies using a highly stylized model: a binomial forward interest rate tree that, while simple in design, illustrates derivative pricing methodologies that are used in practice. Under a given rate volatility assumption, they demonstrate expected outcomes when entering a forward bond contract, a forward‐starting pay‐fixed interest swap, and a purchased option on that swap, as well as the “default” alternative of doing nothing. In principle, the decision of whether or not to hedge, as well as how to do so, depends on management's view of future interest rate volatility and degree of comfort with possible outcomes. The authors then assess the pros and cons of hedging strategies, with considerable emphasis on practical considerations. For example, while their theoretical model would allow an issuer to “lock” a specific debt issuance, in practice one can hedge only “benchmark” interest rate risk. The authors describe the use of both Treasury locks and forward‐starting swaps to address unexpected benchmark yield changes, and discuss how factors such as the time to issuance affect an issuer's choice of instrument. For instance, Treasury locks are typically used when the time to issuance is relatively short, while interest rate swaps are more common for longer times to issuance. The article also discusses circumstances in which a “do nothing” strategy may be preferable to other alternatives, as well as the disadvantages of issuing in advance. Finally, the authors describe the impact of financial accounting on different hedge strategies.     

Value Relevance of Environmental Provisions Pre‐ and Post‐IFRS

The purpose of this paper is to compare the value relevance of environmental provisions as recorded under Canadian/U.S. GAAP and IFRS accounting frameworks with consideration of the impact of voluntarily issuing stand‐alone sustainability reports. The value relevance of environmental provisions is tested using a modified Ohlson (1995) model. We exploit IFRS reconciliations as a quasi‐experimental setting to conduct this comparison. Results indicate that environmental provisions recorded under either framework only act as liabilities for oil and gas firms that release stand‐alone sustainability reports. For other firms in the oil and gas industry, and the mining industry, the liability nature of these provisions appears to be discounted by the market. Furthermore, for firms in the oil and gas industry that do not have stand‐alone CSR reports, provisions appear to be interpreted by the market as a costly signal about future growth. Instead of downwardly affecting market values, this information is associated with higher market values. In terms of the transition to IFRS, we find that, while the IFRS provisions are significantly higher than under former GAAP, they do not improve value relevance for investors. Accounting standard setters should consider examining the changes in the current standards from the original Canadian environmental provision reporting requirements under Capital Assets section 3060.39, as it was rightfully shown to be a relevant proxy for unbooked liabilities (Li and McConomy, 1999; Bewley, 2005) rather than earnings expectancy. The study builds upon prior research to examine the value of accounting standards that have gone through significant changes.     

The Pre‐FOMC Announcement Drift

We document large average excess returns on U.S. equities in anticipation of monetary policy decisions made at scheduled meetings of the Federal Open Market Committee (FOMC) in the past few decades. These pre‐FOMC returns have increased over time and account for sizable fractions of total annual realized stock returns. While other major international equity indices experienced similar pre‐FOMC returns, we find no such effect in U.S. Treasury securities and money market futures. Other major U.S. macroeconomic news announcements also do not give rise to preannouncement excess equity returns. We discuss challenges in explaining these returns with standard asset pricing theory.     

Modelling as a Tool for Cross‐border Analysis of the Position of Insolvency Office Holders

This paper presents a framework and a model applied to make a cross‐border analysis of the position of Insolvency Office Holders. Both the framework and the model were developed in the course of an assignment to design Principles and Best Practices for Insolvency Office Holders for INSOL Europe. The framework is developed by induction from a variety of sources of rules and regulations regarding Insolvency Office Holders, while the model subsequently has been derived by deduction from the framework. Finally, the paper shows how this method assisted in determining the issues to be covered by Principles and Best Practices. The authors argue that commencing international legal comparison with abstract reasoning and modelling may lessen the effect of researcher's academic or professional blind spots and cultural bias and has the potential to enhance the value of cross‐border analysis in terms of coherence, consistency and completeness. Copyright © 2016 INSOL International and John Wiley & Sons, Ltd     

The UNCITRAL Model Law on Cross‐border Insolvency and the Rule of Law

The rule of law is a concept that was often considered in the context of national legal systems. However, it is now commonly being promoted as significant in the transnational context. This paper addresses its importance within the transnational economic and commercial context, in particular in response to cross‐border insolvencies. It examines how the UNCITRAL Model Law on Cross‐border Insolvency and its Guide to Enactment and Interpretation promote key tenets of the rule of law in transnational disputes arising out of businesses in financial distress. In particular, some examples are provided of cases from the Asia‐Pacific region in which the Model Law has been applied to demonstrate how the rule of law may be promoted in an insolvency context. Finally, the paper concludes that the adoption of the UNCITRAL Model Law on Cross‐border Insolvency promotes transparency, accountability and predictability, which in turn support stability in financial systems and credit relationships and thus trade within a global market. This is a direct result of adherence to elements of the rule of law principle. Copyright © 2016 INSOL International and John Wiley & Sons, Ltd. Copyright © 2016 INSOL International and John Wiley & Sons, Ltd     

The Context for Cross‐Border Insolvency Law Reform in Sub‐Saharan Africa

Cross‐border insolvency literature has developed significantly in recent years. However, the scholarship that has evolved lacks an insight from the perspective of Sub‐Saharan Africa (SSA). Existing theories on cross‐border insolvencies, and the global insolvency benchmarks that emerged in the recent years, have almost exclusively been developed from the best practices obtained in advanced economies. Accordingly, the context within which SSA cross‐border insolvency reform may be undertaken must be determined and explored given the pressure towards globalisation and the potential for the pressure to result in unsuitable legislative reform. This article sets out the context for cross‐border insolvency law reform in SSA. It raises issues that are likely to arise during the reform process and challenges that may be faced. Copyright © 2014 INSOL International and John Wiley & Sons, Ltd     

Credit Granting: A Comparative Analysis of Classification Procedures

Financial classification issues, and particularly the financial distress problem, continue to be subject to vigorous investigation. The corporate credit granting process has not received as much attention in the literature. This paper examines the relative effectiveness of parametric, nonparametric and judgemental classification procedures on a sample of corporate credit data. The judgemental model is based on the Analytic Hierarchy Process. Evidence indicates that (nonparametric) recursive partitioning methods provide greater information than simultaneous partitioning procedures. The judgemental model is found to perform as well as statistical models. A complementary relationship is proposed between the statistical and the judgemental models as an effective paradigm for granting credit.     

Insolvency and Tests of Insolvency: An Analysis of the "Balance Sheet" and"Cashflow" Tests

National and international case law refers to two basic tests of insolvency: the "balance sheet" test and the "cashflow" test. While the former method is argued to be the bona fide test for insolvency, accounting principles fail to provide serviceable data for that function. Hence, the cashflow test is superior to the balance-sheet test principally because it quantifies the market worth of assets. The premise is that a financial test of insolvency requires current money equivalents for assets to be compared against all business debt incurred by the entity.     

A Reconsideration of Consolidation Accounting Requirements and Pre‐acquisition Dividends

This article considers the consolidation accounting consequences of the International Accounting Standards Board's decision to replace the cost method of accounting for investments in subsidiaries with a new model that requires the recognition of dividend revenue for distributions received or receivable from pre‐acquisition profits. The article shows that the recognition of pre‐acquisition dividends as revenue with a potential indication of impairment causes problems to consolidation accounting procedures and may reduce the information content of consolidated financial statements. The highlighted problems relate to the elimination of the investment asset against the equity of the subsidiary and the definition and measurement of non‐controlling interest. A review of the due process relevant to the replacement of the cost method indicates that the standard setter may have paid insufficient regard to accounting concepts and principles.     

英国和法国的注册会计师考试考察报告

英国 ICAEW的考试英格兰及威尔士特许会计师协会(ICAEW)成立于1880年,是英国四个特许会计师组织之一,也是英国乃至欧洲最大的职业会计师组织,共有400余名员工,拥有会员12万余人。ICAEW主要负责特许会计师的考试、注册和培训,接受英国贸工部的监督与管理。(一)考试基本情况ICAEW考试的报名基本条件为具有高中以上毕业的学历,鼓励具有更高学历的人报名参加考试,实际上绝大部分报考者均具有大学本科以上毕业学历。同时,报考人员一般应与ICAEW会员的事务所(必须为英国本土、塞浦路斯、马来西亚注册的事务所)签…     

Cross‐Border Debt Adjustment – Open Questions in European Insolvency Proceedings

At present, 18 European Union member states have some form of legislation on adjustment of the debts of a private individual. Only half of these debt adjustment proceedings are mentioned in Annex A of the European Insolvency Regulation (EIR) and therefore fall within the scope of it. As most of the debt adjustment proceedings are not included in the scope of the Brussels I Regulation, there is a regulatory gap in the European insolvency proceedings with unpleasant impacts on the free movement of labour. Fortunately, changes are coming, in the form of the EIR reform. In order to bring debt adjustment within the scope of the EIR, the Commission proposes to loosen the prerequisite concerning the legal effects, which the opening of the proceedings has on the debtor. Regarding the jurisdiction to open main proceedings, the Commission proposes that COMI (the debtor's centre of main interests) would be the place of habitual residence. The open question is, whether residency requires a certain continuity or stability. This issue is discussed in the paper taking into account recent Court of Justice of the European Union case law. The challenge of the EIR reform is that only provisions on scope and jurisdiction have been modified as to debt adjustment. One may ask, e.g. when the prerequisites concerning the opening of secondary proceedings are fulfilled if the debtor is a private individual. Copyright © 2013 INSOL International and John Wiley & Sons, Ltd     

Northern Lights,Canada's version of the UNCITRAL Model Law on Cross‐Border Insolvency

Statute of Canada Chapter 47, when it is proclaimed in force, will largely adopt the UNCITRAL Model Law on Cross‐border Insolvency. The current and proposed cross‐border provisions could be considered Canada's “Northern Lights”, evolving constantly, but aligning with the objectives and scope of the UNCITRAL Model Law. While Chapter 47 is a modified version of the Model Law, it continues Canada's regime as one of modified universalism, with a strong commitment to comity and coordination. There are likely to be contests for control over the scope of foreign proceedings, although arguably, no more so than under the language of the Model Law. The most critical issues to resolve in the short term are definitions of COMI where corporate groups are involved, and the issue of the scope and extent of possible concurrent main proceedings, both areas left to the discretion of the courts in their interpretation of the legislation's domestic, as well as cross‐border, provisions. Copyright © 2007 John Wiley & Sons, Ltd.