A fresh start for individual debtors: the role of South African insolvency and consumer protection legislation

During the last two decades South Africa has witnessed not only a sharp increase in consumer debt but also a strong increase in the granting of credit to individuals. This paper briefly examines the philosophy underlying the contemporary South African insolvency law and also highlights some of the practical problems stemming from its creditor oriented philosophy. In May 2001 INSOL International published a report which is of the view that the solution to over‐indebtedness is to be found, inter alia, in the idea that prevention is better than cure. This paper therefore also investigates the extent to which existing measures of the South African consumer protection law are aimed at the prevention of problematic debt situations. In conclusion we suggest that the existing insolvency and consumer protection legislation is not equal to the task of combating over‐indebtedness and overspending by individuals and that law reform is therefore essential. Copyright © 2005 John Wiley & Sons, Ltd.     

New legislative measures in South Africa aimed at combating over‐indebtedness—are the new proposals sufficient under the constitution and law in general?

The National Credit Bill codifies a number of fundamental rights of consumers in the credit market. It provides inter alia for a right to information to enable consumers to make informed choices and thereby contributes to one of the purposes of the proposed legislation, namely to provide mechanisms to combat over‐indebtedness. The main purpose of this research is to evaluate the proposed measures in the Bill aimed at combating over‐indebtedness and also to determine to which extent these measures comply with the general constitutional consumer protection demands. In order to achieve this, the relevant guidelines of the INSOL Consumer Debt Report and measures in other jurisdictions will also be considered. Since the South African Constitution does not directly obligate the state to enact specific credit laws and as the Bill seeks, in the spirit of the supreme law, to codify certain basic consumer rights, the new legislative initiatives are to be welcomed. It is, however, submitted that the Bill does not go far enough in achieving its particular aims and objectives and that more could be done to bring South African legislation in line with measures in other jurisdictions. Copyright © 2006 John Wiley & Sons, Ltd.     

Perspectives on the South African Responsible Lending Regime and the Duty to Conduct Pre‐agreement Assessment as a Responsible Lending Practice

In the 2001 INSOL International Consumer Debt Report: Report of Findings and Recommendations, the view was held that the solution to overspending and over‐indebtedness is inter alia to be found in the idea that prevention is better than cure. Ex ante responsible lending practices as preventative measures to avoid reckless credit granting and over‐indebtedness are arguably more important tools in establishing a healthy credit market than ex post measures. The focus of this contribution, is therefore, to provide a detailed overview of the South African reckless credit regime as a debt‐ prevention measure aimed at promoting responsible lending, with specific focus on the aspect of pre‐agreement assessment as a core mechanism to avoid reckless credit granting and over‐indebtedness. The main features of the reckless credit regime are highlighted, and afterwards, a detailed exposition of the evolution and extensive recent development of the pre‐agreement assessment component in South Africa is undertaken. Finally, observations are made regarding the South African reckless regime in general and with regard to affordability assessment specifically and its ability, benchmarked against the essential features of a responsible lending regime as advocated by Wilson in the book ‘International responses to issues of credit and over‐indebtedness in the wake of crisis’, to promote responsible lending. The conclusion is reached that benchmarked against the four characteristics of an effective responsible lending regime as identified by Wilson, it is apparent that the South African reckless lending regime is no ‘toothless tiger’, and that it attaches the necessary amount of significance to the credit provider's duty to take reasonable steps to do a proper pre‐agreement assessment in order to avoid reckless credit granting. Copyright © 2015 INSOL International and John Wiley & Sons, Ltd.     

参考群体对消费者网络购买决策影响的实证研究

以参考群体的信用水平、感知价值水平为自变量,设计3×2×4的模拟实验,考量参考群体对消费者网络购买决策的影响.结果表明:不同信用度的参考群体对消费者网络购买决策有显著正向影响,参考群体的信用度越高,消费者的网络购买决策所受影响越大;不同感知价值的参考群体对消费者网络购买不同产品的决策均有正向显著影响,感知价值越高,消费者购买决策越受影响.参考群体的信用水平与感知价值的交互作用对消费者网络购买决策有正向显著影响.     

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.     

Are Bangladesh,India and Pakistan Ready to Adopt the UNCITRAL Model Law on Cross‐Border Insolvency?

The development of business laws in key markets has not kept pace with the exponential growth of foreign investment they have experienced. Countries such as Brazil, Russia and China either do not consider the issue of cross‐border insolvency in their legislation or they explicitly provide for a ‘territorialist’ approach to cross‐border insolvency proceedings, whereby each country grabs local assets for the benefit of local creditors, with little consideration of foreign proceedings. This has led to uncoordinated, expensive attempts at cross‐border reorganisation. The UNCITRAL Model Law on Cross‐Border Insolvency (1997) was adopted with the objective of modernising international insolvency regimes and enhancing cross‐border cooperation. In its 19 years of existence, it has been adopted by 41 countries in a total of 43 jurisdictions but by none of the BRIC states or the ‘Next‐11’ nations of Bangladesh and Pakistan. While it has entered into policy‐level discussion in China, India and Russia, it would seem that there is still scepticism regarding the efficacy and suitability of the Model Law for adoption into their national systems. This paper seeks to establish whether the Model Law can adequately plug, what Steven Kargman calls, ‘the glaring gap in the international insolvency architecture’, looking particularly at the context of the South Asian states of India, Bangladesh and Pakistan. It will question whether its adoption will improve the ability of these jurisdictions to handle the challenges of cross‐border insolvencies, especially in light of their existing legal landscape, their market policy objectives and the existing alternatives available to the Model Law. Copyright © 2016 INSOL International and John Wiley & Sons, Ltd.     

Aspects of tax pertaining to insolvency law in South Africa

This paper seeks to briefly analyse the somewhat convoluted provisions contained in South African tax legislation that apply to insolvent entities in South Africa. While South Africa has modern and effective taxation laws, the provisions, when applied to insolvent entities, are often exposed as cumbersome and ineffective. Tax legislation in South Africa does not take proper cognisance of the unique nature of insolvency, often placing a heavy burden on the trustee or liquidator who is required to administer the estate as speedily and effectively as possible. In addition, there are different rules that apply to consumer and corporate insolvency regarding the assessment of income tax pre‐ and post‐liquidation. The recent introduction of a capital gains tax has placed an additional burden on insolvency practitioners, especially considering the lack of clarity as to how these provisions should be applied in practice. Although the Value‐Added Tax Act was introduced more than a decade ago, its provisions continue to pose problems for insolvency practitioners during the administration process of insolvent estates. Despite these difficulties, the South African revenue authorities are to be lauded for the sensible manner in which problems are addressed in practice. Copyright © 2005 John Wiley & Sons, Ltd.     

Consumer insolvency in Australia

This paper seeks to identify and assess the features of Australian bankruptcy regulation as they apply to consumer insolvency. Although Australian bankruptcy law makes no explicit recognition of ‘consumer bankruptcy’ as a regulatory target in itself, the Australian legislation nevertheless has a number of features that impact on what would generally be seen to be consumer bankrupts. After providing an outline of the legislative framework within which consumer bankruptcy operates, the paper examines the consumer insolvency aspects of this legislation, together with an assessment of proposed reforms. Some brief comparisons of the ‘consumer’ features of Australian regulation with that of the more fully developed consumer provisions of the Canadian and the United States bankruptcy legislation, are made in order to highlight the Australian position. The Australian Act has historically drawn heavily on English bankruptcy legislation but inevitably Australia has to some extent developed along its own path. Notable is the reasonably vigorous approach to discharge from bankruptcy. The proposed reforms to the Bankruptcy Act, which have followed a detailed consultative process, are largely directed to consumer debtors. Some of these reforms are directed against a perceived debtor abuse of the bankruptcy system. Other reforms, such as increasing the availability of debt agreements, are more generous to insolvent debtors. On the whole the reforms appear to be based more on political than empirical grounds.     

Conflicting norms: Impact of the Model Law on Chapter 11's Global Restructuring Role

The Model Law's emphasis on the debtor's center of main interest (COMI) as the proper jurisdiction for the main insolvency proceeding is at odds with the traditional United States approach of applying Chapter 11 to restructure foreign entities with no significant US connection. This paper explores whether adoption of the Model Law has made Chapter 11 less available for debtors with a foreign COMI. The Model Law has had no direct impact on the US courts approach to foreign‐entity Chapter 11 cases. However, shortly after the Model Law's adoption, several reported US decisions added the pendency of a foreign insolvency proceeding as a factor supporting discretionary abstention or dismissal of foreign Chapter 11 cases. While those decisions do not refer to the Model Law, it is possible that the Model Law's COMI‐centric approach influenced this new trend.     

自然人破产制度的建立

从法政策角度考量,自然人破产制度可以使债权人获得公平受偿,使债务人获得重生,这是自然人破产制度确立的最重要原因;而信贷消费的迅速发展,是我国确立自然人破产制度的社会基础。我国面临的城乡二元结构、信用体系的不健全只是建立自然人破产时必须予以考虑的法技术问题。在建立自然人破产制度时必须正视城乡二元结构、信用体制缺失等问题,并逐步建立自然人财产申报登记制度,完善信用制度。     

Chinese cross‐border insolvencies: current issues and future developments*

This article deals with several problems pertaining to cross‐border insolvency, an important but ignored area in China. In this article, the current status of Chinese bankruptcy laws has been firstly addressed, with a focus on its legal blank on cross‐border insolvency and unsatisfactory judicial practice. Thereafter, the influential Guargdong International Trust and Investment company case has been analysed, which further highlights the inadequacy of Chinese bankruptcy legislation and crying needs for its reform. Basing on the essential principles embodied in the United Nations Commission on International Trade Law Model Law and European Union Regulation, the gaps between Chinese bankruptcy laws and international practice have been made clear. Accordingly, the developments of Chinese cross‐border insolvency have been proposed in order to provide helpful references for the future legislation. Copyright © 2001 John Wiley & Sons, Ltd.     

The federal deposit insurance fund that didn't put a bite on U.S. taxpayers

Unlike the Federal Savings and Loan Insurance Corporation and the Bank Insurance Fund, the National Credit Union Share Insurance Fund (NCUSIF) survived the 1980s without falling into a state of accounting insolvency. This paper analyzes how differences in incentive structure constrain the attractiveness of interest-rate speculation and other risk-taking opportunities to managers and regulators of credit unions. Despite these better incentives, robust present-value calculations establish that NCUSIF fell into economic insolvency during the mid-1980s.Besides calculating the extent of this insolvency, the paper also seeks to explain why, after NCUSIF became insolvent, it could rebuild its reserves without an explicit or implicit taxpayer bailout. Our explanation turns on cross-industry coinsurance responsibilities and the shallowness of the fund's observed insolvency relative to industry net worth. We identify forces in the decisionmaking environment tending to limit the depth and duration of unresolved insolvencies at individual credit unions. Managerial opportunities to benefit personally from taking risks that would flow through to NCUSIF are constrained by difficulties in converting a credit union to stockholder form and by the intensity of proactive monitoring of troubled credit unions by sister institutions and other private coinsurers. We conjecture that expanded use of coinsurance and private monitoring could reduce taxpayer loss exposure elsewhere in government deposit insurance systems.     

Implications of the UNCITRAL model law for Australian cross‐border insolvencies

Recent events in international financial markets have focused regulators' and lenders' attention not only on the importance of insolvency laws as an integral part of the regulation of market economies but also on the need to facilitate the administration of multi‐jurisdictional insolvencies. In this context, UNCITRAL has proposed a Model Law on Cross‐border Insolvencies for adoption by its member states. Australia contributed to the relevant UNCITRAL deliberations and is considering possible adoption of the Model Law. This article outlines the Law's main features and its potential impact on current Australian procedures for dealing with cross‐border insolvencies. Copyright © 1999 John Wiley & Sons, Ltd.     

Asset Sales and Secured Creditor Control in Restructuring: A Comparison of the UK,US and Canadian Models

The primary insolvency restructuring mechanism in the UK is administration under the Insolvency Act 1986, as amended by the Enterprise Act 2002. In an administration, an insolvency professional known as an administrator, who is accountable to the insolvent company's creditors as a whole, is appointed to oversee the restructuring. The administration process was designed to rehabilitate distressed but viable companies and businesses and to maximize creditors' recoveries. Increasingly, however, insolvent companies are using this process to sell substantially all of their assets through pre‐packaged administrations or ‘pre‐packs’. In a pre‐pack, the insolvent company and its senior creditors negotiate the terms of the sale prior to initiating administration proceedings and appointing an administrator. The administrator then implements the deal, often with little or no input from junior creditors or other stakeholders. Both the US Bankruptcy Code and the Companies' Creditors Arrangement Act in Canada permit insolvent companies to sell substantially all of their assets under the auspices of the restructuring legislation. This article compares pre‐packs with these US and Canadian processes, arguing that they are all functionally equivalent in that they facilitate quick realizations for secured creditors by bypassing traditional restructuring processes. This analysis suggests that pre‐packs may give too much control over the restructuring process to secured creditors, encouraging rent‐seeking and other value‐destructive behaviours that undermine the fundamental goals of insolvency law. Copyright © 2017 INSOL International and John Wiley & Sons, Ltd.     

The Actuarial Balance Sheet for Pay‐As‐You‐Go Finance: Solvency Indicators for Spain and Sweden*

This paper provides the first estimate of the actuarial balance of the Spanish contributory pension system for the old‐age contingency, based on official data. The main accounting entries are developed from the principles of double‐entry bookkeeping. The novel entry in the balance sheet, entitled the ‘contribution asset’ or ‘hidden asset’, is at the centre of the theoretical discussion. A comparison between the official balance sheet for the Swedish notional account system and our balance sheet for the Spanish contributory pension system is also provided. The main finding is that the Spanish pension system has an insolvency rate of 31.4 per cent. The policy implication is that unless current legislation is reformed, Spanish taxpayers (the plan sponsor) should count on making transfers to the pension system with a present discounted value of 31.4 per cent of current liabilities. Moreover, a comparison of the consecutive balance sheets for 2001‐06 shows that the degree of insolvency is growing over time, even though the cash‐flow outcome has improved over the same period. Taking steps to reverse this trend and restore solvency is in Spanish taxpayers' interest, and possibly also in the interest of those in the European Union who recognise that there is a chance that they may have to support the Spanish budget in the future.     

Conceptualising upcoming Chinese bank insolvency law: Cross‐border issues

This paper examines the cross‐border effectiveness of bank resolution measures in the context of current and soon‐to‐be revised Chinese bank insolvency legislation, that is, the Bank Resolution Regulation. The general framework is regulated in the Chinese Enterprise Bankruptcy Law. With regard to the outgoing effects of Chinese bank resolution measures, the ultimate decision is in the hands of China's counterparts. However, it is proposed that the contractual approach could be a solution to enhance legal certainty. On the other hand, the incoming effectiveness of foreign resolution measures has to be firstly recognised in China. Three major tests in terms of recognition and enforcement are international agreement, reciprocity, and public policy exception. These criteria should be interpreted against the background of emerging international regime for bank resolution and latest development in the Chinese legal community.     

金融衍生品信用风险管理与制度设计的法律问题

本文以法与金融学的方法分析了金融衍生产品信用风险的双边性质,并认为,我国金融机构在信用风险管理时应采用ISDA主协议或中国银行间市场金融衍生产品交易主协议文本,并应注意文本术语的差异。立法部门和监管部门应积极借鉴发达国家金融衍生产品市场的立法经验和实务操作,完善我国的《破产法》和《担保法》,对净额结算条款、信用支持文件、信用限额和信用衍生产品等法律效力给予明确规定,以增强可操作性。     

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.     

Cross-border insolvency law of China: An empirical analysis and proposal based on the insolvency cooperation mechanism between the Chinese mainland and Hong Kong

In the context of the national strategy of the construction of the Guangdong-Hong Kong-Macao Greater Bay Area, the first institutional breakthrough in cross-border insolvency cooperation between the Chinese Mainland and Hong Kong was achieved on 14 May 2021, and the first case of recognition and assistance in insolvency proceedings in Hong Kong, Re Samson Paper Co Ltd., emerged in judicial practice in December 2021. The judicial practice of Samson not only successfully verifies the great significance of the Record of Meeting and the Opinion for institutional ice-breaking of cross-border insolvency cooperation in the Chinese Mainland, but also reflects the practical effects and legislative issues of the above documents on the mechanism of insolvency cooperation between two areas. In view of the problems reflected by the practice of Re Samson Paper Co Ltd. and existing in the legislation, this paper puts forward specific proposals for the cross-border insolvency cooperation between the Chinese Mainland and Hong Kong, including abolishing the precondition of reciprocity, strengthening exchanges, and cooperation between the two areas on parallel bankruptcy issues, and supplementing the coordination of parallel bankruptcy procedures for cross-border insolvency. It also proposes domestic legislation on cross-border insolvency recognition and assistance in China in a point-by-point manner, so as to achieve the establishment of a sound cross-border insolvency cooperation mechanism in line with the international community.     

中国个人消费信贷状况及风险防范研究

随着个人信用消费的不断扩大,消费信贷的比重不断提高,在整个市场个人信用制度不完善的情况下,个人信贷风险凸现,银行个人信贷中的不良资产率上升。本文从中国消费信贷的总量状况出发,对于银行消费信贷内部结构展开探讨,继而分析消费信贷的客户风险、制度风险及法律政策风险,并以此为基础提出了建立个人信用管理制度、充分利用客户信用分析法、逐步试点个人破产制度、建立银行内控体系及风险转嫁渠道以及完善个人消费信贷的相关法律保障等防范措施。