Insolvency law reform in Australia and Singapore: Directors' liability for insolvent trading and wrongful trading

This article compares reforms to directors' liability for insolvent trading in Singapore and in Australia. We analyse the law in these two countries because they are important Asia‐Pacific trading partners and their laws were originally largely the same—Singapore's law on insolvent trading reflected the law in Australia from the 1960s. However, the law in the two countries has now diverged substantially. The comparison of these two countries therefore represents an interesting case study in how countries differ in their approaches to balancing the competing interests evident in laws that impose personal liability on company directors for insolvent trading. Reform of the prohibition against insolvent trading was a focus of Australia's insolvency law reforms in 2017, which led to the introduction of a safe harbour for directors from liability. Singapore's omnibus insolvency law reforms of 2018–19 include amendments to update Singapore's fraudulent and insolvent trading provisions by introducing a concept of “wrongful trading.” The article finds that there are some areas of convergence between these two jurisdictions when it comes to debates about such provisions but concludes that the different contemporary legislative histories in Australia and Singapore have affected their approaches to reform. Reformers in both jurisdictions have attempted to find an appropriate balance between protecting creditors, discouraging director misconduct, and encouraging entrepreneurship and innovation; however, this comparison suggests that the weight that reformers place on creditor protection compared with the concern that excessive personal liability can make directors unduly risk‐averse is influenced by their existing legislative framework and experience of those laws. Although Australia has shifted away from a strict focus on creditor protection, to give directors more opportunities to engage in restructuring, Singapore's amendments may provide a more creditor‐friendly regime.     

试论违约责任、缔约过失责任与补充侵权责任

违约责任、缔约过失责任和补充侵权责任是在种不同的的责任方式,违约责任的适用前提是契约的依法成立;缔约过失责任只能发生在合同订立的过程中,是对违反前契约义务行为的一种责任追究方式;而补充侵权责任是侵权责任的一种特殊情况。商业银行首先应当在存款合同订立的整个过程中,遵守相关的前契约义务,其次,在合同订立后,应当遵守合同约定的义务,另外,商业银行对客户还应当尽到保护的义务。否则,一旦出现客户的人身或者财产损失,商业银行就得承担起相应的法律责任。     

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     

Universalism and the recognition of group proceedings under the UNCITRAL Model Law in Montenegro

Among the most topical insolvency issues in 2017 was the Croatian “Lex Agrokor”—a controversial “tailor‐made” law providing a unique restructuring opportunity for the largest Croatian conglomerate, the parent company of which was otherwise facing bankruptcy. Soon after the “extraordinary administration procedure” began, the appointed administrator started filing motions for the recognition of the alleged group insolvency as foreign insolvency proceedings in a number of neighbouring and other European countries, most of which have adopted the UNCITRAL Model Law on Cross‐Border Insolvency. It was an attempt to save the conglomerate's property from being seized in a disorderly fashion by various secured creditors, most noticeably, the largest Russian financial institution Sberbank, which contested these motions with varying success. This article, however, does not present an effort to comprehensively analyse the ongoing legal battle but rather adopts a broader approach to examining the Lex Agrokor to establish grounds for more general conclusions. More precisely, the purpose of this article is twofold. First, to offer strong arguments that, from the standpoint of typical insolvency legislation based on the Model Law, such as that of Montenegro, both the actual and future group proceedings initiated under the Lex Agrokor should fail to meet recognition requirements. Second, based on the preceding case study, to offer conclusions on how to further promote universal approach regarding group insolvencies by emphasizing exactly what the national laws regulating group insolvency should not feature so as to have the proceedings introduced therewith recognized in countries adopting the Model Law.     

The staying power of the public corporation

Has the publicly held corporation out-lived its usefulness? In HBR's September-October 1989 issue, Michael C. Jensen of the Harvard Business School said "yes." The institutional shortcomings of the public corporation are so grave, he argued, that it must be considered fatally flawed. He described the emergence of a new form of enterprise-the LBO Association-that releases much of the untapped value and corrects many of the inefficiencies of large public companies. Alfred Rappaport, a professor and consultant who advises large public companies, joins the debate with a rebuttal to Jensen. Rappaport shares many of Jensen's criticisms of current strategic and financial practices among public companies. But he does not believe leveraged buyouts and other going-private transactions can replace the public corporation. This is so, he asserts, for two reasons: LBOs have a limited demand and a limited life. Rappaport argues that the publicly held corporation is worth saving. It is inherently flexible and self-renewing-properties that are fundamental to stability and progress in a market-driven economy and that transitory organizations like LBOs cannot replicate. Rappaport advances a four-point program to overhaul strategic planning, compensation, and governance to maximize shareholder value in public companies: 1. Find the highest valued use for all assets. 2. Limit investment to opportunities with credible potential to create value. 3. Return cash to shareholders when such value-creating investments are not available. 4. Establish incentives for managers and employees to focus on the critical business drivers that create value.     

A new statutory director’s duty for Australia — a ‘duty’ to be concerned about employee entitlements in the insolvent corporation

Australia has introduced legislation that is aimed at preventing a person from entering into agreements or conducting transactions with the intention of defeating the recovery of employee entitlements. It is essentially aimed at directors and their behaviour in the pre‐appointment period. This paper discusses the history leading up to such a legislative move and the likely benign impact now that the Corporations Act in Australia prohibits such behaviour. Further, the paper argues that mooted changes to the legislation giving employees a ‘maximum priority’ ahead of secured creditors is unnecessary. Copyright © 2003 John Wiley & Sons, Ltd.     

中国崛起与伟大公司的萌芽

只要能够把握经济全球化、产业结构升级以及中国经济大国崛起的机遇,并配套合理的政策,那么中国世界级大企业必将不断涌现。在这个过程中,资本市场将起到重要作用。一个经济体的崛起必然伴随着一批伟大公司的诞生。中国经过近30年的迅速增长,产生了一大批非常优秀的公司,但离伟大公司还有相当的距离。我们所处的这一时期与相对和平的国际环境、经济全球化及国际产业结构转移相耦合,形成了中国经济发     

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.     

Ownership changes, accounting practice and the redefinition of the corporation

This paper examines the role of accounting in facilitating and legitimating the conglomerate movement in American business during the 1960s. We argue that the profileration of conglomerate mergers contributed to a reconceptualization of the corporation that emphasized its financial rather than its productive capacities. This conception of the firm has now been institutionalized; its logic motivates the takeovers and restructuring that characterize contemporary business. Our case illustrates the rhetorical power of accounting as a symbolic system for legitimating new corporate forms and practices.     

Asymmetric-information and principal-agent problems as sources of value in FSLIC-Assisted acquisitions of insolvent thrifts

This study uses a two-factor market-model to estimate excess returns around 43 announcements of FSLIC-assisted thrift mergers and 66 announcements of unassisted thrift mergers. These estimated excess returns are then used to test hypotheses about asymetric-information and principal-agent problem in the thrift resolution process as sources of value in these mergers. The results show that acquirers in assisted transactions earned positive and statistically significant excess returns of approximately 2 percent, whereas acquirers in unassisted transactions earned excess returns that are not significantly different from zero; however, the excess returns in the assisted mergers are quantitatively small. For the 43 assisted mergers, estimated excess returns imply aggregate wealth transfers of only $13 million as compared with $2.3 billion in FSLIC assistance that were granted in these transactions. These findings suggest that the FSLIC-assisted transactions were reasonably well structured and that the assistance granted did not result in large wealth transfers to acquirers of insolvent institutions. Finally, the study provides evidence that informational asymmetries and principal-agent problems in the thrift resolution process were significant sources of excess returns for the acquirers receiving FSLIC assistance.The views reflected in this paper are those of the authors and do not necessarily represent policies of Board of Governors of the Federal Reserve System or the Federal Housing Finance Board. Helpful comments were recieved from participants in the Finance Workshop at the University of North Carolina at Chapel Hill, George Benston, Richard Brown, Jennifer Conrad, Sally Davies, Mark Flannery, Edward Kane, David Ravenscraft, and Lawrence J. White.     

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.     

When time is not on our side: The costs of regulatory forbearance in the closure of insolvent banks

In this paper, we empirically estimate the costs of delay in the FDIC's closures of 433 commercial banks between 2007 and 2014 based upon a counterfactual closure regime. We find that the costs of delay could have been as high as $18.5 billion, or 37% of the FDIC's estimated costs of closure of $49.8 billion. We think that these findings call for a more aggressive stance by bank regulators with respect to the provisions for loan losses and write-downs of banks’ non-performing assets. More aggressive (and earlier) provisions and write-downs, or adoption of a capital ratio that penalizes nonperforming loans, would allow the concept of “prompt corrective action” (PCA) to play the role that it was meant to play in reducing FDIC losses from insolvent banks.     

The Rigour of IFRS Education in the USA: Analysis,Reflection and Innovativeness

Abstract

International Financial Reporting Standards (IFRS) are accepted throughout the world, particularly in the European Union, Australia, New Zealand and Canada. Emerging economies are also are aligning their practices with IFRS. Historically, the USA has been cautious about accepting IFRS. However, following acceptance of IFRS worldwide, the US Securities and Exchange Commission has recently allowed the filing of IFRS-based financial statements from foreign issuers and is presently considering the same from domestic issuers. Owing to lack of IFRS education and training in the country, concerns have been expressed about such moves of the USA towards IFRS. Following such concerns, the aim of the present study is to review previous literature on IFRS education to reflect on the present status of IFRS education in the USA. The research method includes a review of past literature on IFRS education in the Business Source Complete database from 2001 to 2012. In line with the review, this study reports that active learning approaches that stimulate critical thinking and judgement skills of students are the best methods to teach IFRS. The studies reviewed also report the lack of teaching materials, including software and technologies, to effectively teach IFRS. The only active learning strategies advocated in previous studies were the use of case studies and real life examples. Additionally, this study advocates the use of problem-based learning strategies. This study also reports the lack of research investigating students’ and educators' perceptions of available resources and approaches. Future studies are suggested in this direction, employing surveys and interviews.     

Insurance and catastrophes: The changing role of the liability system

Insurance catastrophes are increasingly the result of actions by human beings rather than nature. Chief among these insurance changes has been the surge in tort liability insurance costs. Unfortunately, the courts have misunderstood the mechanisms for transmitting these costs throughout the economy. A principal deficiency is that the structure of liability has been inconsistent with the courts' assumption that the losses could be borne by consumers or parties other than the insurer.Commentary on presentation by Richard Zeckhauser, Insurance and Catastrophes, Geneva Lecture, Paris, France, May 12, 1995.     

Making company directors liable: a comparative analysis of wrongful trading in the United Kingdom and insolvent trading in Australia

The separate legal entity doctrine in corporate law means that directors are not generally liable for their company's liabilities. However, there have been actions taken by governments and courts to make directors liable in certain cases. This article examines and compares legislative provisions in the United Kingdom and Australia to make directors liable for the debts of their companies. These provisions, namely section 214 of the UK's Insolvency Act 1986 (wrongful trading) and section 588G of the Australian Corporations Act 2001 (insolvent trading), had the same starting point, but now differ substantially, even though, arguably, they retain very similar objectives. The article investigates: the reasons for these differences; the criteria on which each of the provisions focus; and the ramifications for the different approaches. It also endeavours to evaluate the strengths and weaknesses of the respective approaches adopted in each country. Copyright © 2005 John Wiley & Sons, Ltd.