Consumer Debt Relief in South Africa—Should the Insolvency System Provide for NINA Debtors? Lessons from New Zealand

South African natural person insolvency law has remained largely creditor‐orientated despite the international trend to assist over‐indebted debtors. Furthermore, although the South African system provides for a number of debt relief procedures, the entry requirements are of such a nature that most debtors are effectively excluded from any form of relief and therefore bound to their desperate situations. The majority of these excluded debtors fall within the no income and no assets (the so‐called No Income No Asset (NINA) debtors) category‐the main feature of this article. In the South African insolvency system, a person can therefore be ‘too poor to go bankrupt’. With reference to international principles and a thorough comparative study of the New Zealand system, the South African system is analysed, and some recommendations are made in order to provide a more accessible, effective and nondiscriminate system with specific focus on the plight of the NINA debtor. This is done by keeping the complex South African debt and poverty situation in mind as it is acknowledged that any reform should take cognisance of the unique socio‐economic and cultural background. It is recognised that providing relief to the NINA category debtors will have an impact on the economy. However, it is submitted that the exclusion of this group will be even more expensive as it creates an obstacle for these debtors to enter the formal sector and economy, thereby discouraging broader economic growth. Copyright © 2013 INSOL International and John Wiley & Sons, Ltd.     

The new poor person's bankruptcy: Comparative perspectives

A significant policy issue in personal insolvency concerns the debtor with little income and few assets who may be unable to afford bankruptcy in those jurisdictions which require payment to access the individual bankruptcy system. The challenge of addressing the situation of these debtors is one experienced both by long standing personal insolvency systems and newer system in emerging markets. This article introduces a special issue of the International Insolvency Review which considers the responses of several common law, civil law and mixed regimes to this policy topic. The article discusses the background to the English Debt Relief Order enacted in 2009 as a procedure for low‐income debtors, outlines salient issues raised by its implementation and discusses research themes related to the existence of the “No‐Income‐No Asset” debtor, including the structure and financing of the bankruptcy system, the contribution of NINA procedures to access to justice, the role of intermediaries in the bankruptcy system and the political economy of bankruptcy reform.     

Rectifying an unconstitutional dispensation? A consideration of proposed reforms relating to no income no asset debtors in South Africa

The South African natural person debt relief system remains heavily procreditor and consequently excludes many deserving debtors from any form of relief. This is despite the fact that such marginalisation amounts to unjustifiable, unfair discrimination on the basis of debtors' financial status. The main aim of this article is to establish whether proposed reforms, and specifically the debt intervention procedure, will rectify the current unconstitutional dispensation and particularly the unreasonable unfair discrimination against “no income no asset” (NINA) debtors, who undoubtedly constitutes the largest part of relegated debtors. The article may benefit developing countries seeking to introduce debt relief measures curtailed to the needs of their ever‐escalating NINA debtors.     

Individual voluntary arrangements: A ‘fresh start’ for salaried consumer debtors in England and Wales

Since the mid‐1990s the number of consumer insolvencies in England and Wales has grown exponentially. The UK's Insolvency Act 1986 offers two formal responses to personal insolvency: bankruptcy and individual voluntary arrangements (‘IVAs’). While consumers have used both these debt relief mechanisms in increasing numbers in recent years, IVAs—regulated agreements between debtors and creditors facilitated by a licensed insolvency practitioner, usually taking the form of a 5‐year payment plan—grew faster than bankruptcies between 2003 and 2006. However, the level of new IVA approvals fell back in 2007 and the first half of 2008. This article charts the transformation of the IVA from a bankruptcy alternative originally designed for insolvent traders and professionals into a tool of consumer debt relief. It then seeks to explain both the stellar rise in IVA usage among consumer debtors and the subsequent stalling of IVA growth. The rise of consumer IVAs can be attributed largely to supply side changes in the market for debt resolution—in particular the emergence of volume providers commonly referred to as ‘IVA factories’—while a sustained backlash against the procedure and the providers instigated by institutional creditors demanding higher recoveries accounts for the subsequent decline in approvals. The article concludes by considering the near‐term prospects for consumer IVAs within the context of the increasingly complex UK debt resolution market. Copyright © 2009 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.     

NINA/LILA debtors under the Portuguese Insolvency Act: A hidden problem in plain sight?

No income, no assets (NINA) and low income, low assets (LILA) debtors are a non‐negligible part of the increasingly ‘financialized’ market economy. Falling outside the financial market or accessing it through low quality financial products, NINA/LILA debtors appear to be under prioritized by both legal and judicial regimes and public policies. Focusing on the legal and judicial dimension, and taking as an illustration the Portuguese context, we discuss how preinsolvency and insolvency solutions still remain ill‐adjusted for such cases. In spite the existence of some legal provisions aiming at fostering access to law and courts regardless individuals' financial conditions, they do not perform very well with insolvent debtors lacking a regular income. Addicionally, there are non‐legal barriers that prevent those with less economic means to fight properly for their social and economic rights.     

Debt Agreements for Consumers under Bankruptcy Law in Australia and Developing International Principles and Standards for Personal Insolvency

The debt agreement option under bankruptcy law was introduced in Australia in 1996. Since its introduction, it has undergone significant review, and two sets of amendments have been crafted to meet issues as they have been raised. Its popularity is reflected in the increasing proportion of debt agreements compared with the other two debt relief options available under bankruptcy legislation, bankruptcy and the personal insolvency agreement. A review of the debt agreement scheme has recently been undertaken, but the government has yet to respond to its recommendations. Meanwhile, the work of comparative bankruptcy scholars has found new impetus from the treatment of consumer debtors during the Global Financial Crisis. At the same time, at the international level, there is growing interest in developing general principles for the treatment of personal insolvency, despite the acknowledged diversity of approach to personal insolvency at the national level. This paper examines the debt agreement framework and how it fits within the comparative bankruptcy literature and the developing international principles for the treatment of personal insolvency. Copyright © 2014 INSOL International and John Wiley & Sons, Ltd     

Is the Unequal Treatment of Debtors in Natural Person Insolvency Law Justifiable?: A South African Exposition

The South African natural person insolvency system has remained largely creditor‐orientated and excludes many honest but unfortunate debtors from its ambit. This is despite the worldwide trend to accommodate all such debtors. Although the system does provide for three different statutory natural person debt relief procedures, the cumulative effect of these measures' entry requirements results in differentiation on financial grounds. This is as all statutory measures require the debtor to have some form of disposable assets or income available – thereby drawing a distinction between those debtors with and those without assets and or income (the so‐called no income no asset debtors). The main aim of this article is to measure the South African natural person insolvency system against the right to equality in terms of both the South African Constitution and the Promotion of Equality and Prevention of Unfair Discrimination Act. The article may benefit legislatures and policymakers in constitutional jurisdictions that subscribe to the equality principle and that directly or indirectly exclude some debtors from debt relief while providing others therewith. Copyright © 2016 INSOL International and John Wiley & Sons, Ltd.     

Low‐income,low‐asset debtors in the U.S. bankruptcy system

The United States' bankruptcy system faces a major problem: many consumers are too poor to file for bankruptcy, usually because they cannot afford the necessary attorney fees. Some consumers appear to spend months trying to save the funds to pay their attorneys, thus either delaying their bankruptcies or foregoing bankruptcy altogether when they fail to save enough money. Others file for repayment bankruptcy in order to pay attorney fees during the case, when liquidation bankruptcy is usually a better fit for consumers with low incomes and low asset levels. The most recent comprehensive bankruptcy reform, the Bankruptcy Abuse Prevention and Consumer Protection Act (BAPCPA), exacerbated these problems by implementing additional procedural requirements that resulted in attorneys raising their fees. These problems have led to calls for administrative bankruptcy, especially for low‐income, low‐asset (LILA)/no‐income, no‐asset (NINA) debtors. Administrative bankruptcy would make bankruptcy more accessible by lowering access costs, for example, by eliminating the need for consumers to hire attorneys. Administrative programs in the United States, however, have a history of long‐term decline, especially when these programs serve low‐income people. It has become a cliché that poor people's programs become poor programs. A better solution would be to eliminate the procedural requirements imposed by BAPCPA and simplify the decision consumers must make about which type of bankruptcy to use.     

Twenty‐five years of consumer bankruptcy in continental Europe: internalizing negative externalities and humanizing justice in Denmark

This paper explores the problems and processes that led to the birth of consumer bankruptcy in continental Europe, a process that began in Denmark in January 1972 and culminated with the adoption of the Danish consumer debt adjustment act, Gældssaneringslov, on 9 May 1984. While this law is often described in primarily humanitarian terms, in the sense of offering a respite to “hopelessly indebted” individuals, both the motivation for the law and its intended scope were not simply accretions on an already multi‐layered welfare system. Instead, the law was designed primarily as a pragmatic response to economically wasteful collections activities that imposed negative externalities on debtors, creditors, and especially Danish society and state coffers; the law was intended to force creditors to internalize (or eliminate) these externalities with respect to all debtors unable to pay their debts within a reasonable period of 5 years. The paper also examines the growing pains of this new system. The law originally left significant administrative discretion to judges, which produced vast disparities in treatment of cases in different regions of the country. Ultimately, a reform implemented in October 2005 made the system more accessible, more unitary throughout the country, and more humane. The effects of this reform are already visible in statistical observations of the system, though significant regional variations persist. Given the striking coincidence in timing, this paper also offers brief comparative comments on the parallel design—but very different effect—of the most significant reform of the US consumer bankruptcy law, also effective in October 2005. Copyright © 2009 John Wiley & Sons, Ltd.     

‘Bankruptcy tourism’ under the EC regulation on insolvency proceedings: A view from England and Wales

This article provides an account of the emergent phenomenon of ‘bankruptcy tourism’—forum shopping by debtors for favourable personal insolvency law—within the EU and with particular reference to England and Wales. After outlining the structural features of the European legal framework that make forum shopping for personal insolvency law possible, including the EC Regulation on Insolvency Proceedings and explaining why England and Wales in particular has proved to be an attractive ‘tourist’ destination, the article charts how the official receivers and the courts in England and Wales have sought to manage the influx of foreign bankruptcies in terms of legal principle and process drawing on two reported cases, Eichler and Mitterfellner. It will be seen that the institutional response in England and Wales has been twofold. First, the ‘problem’ of forum shopping debtors has been framed as a problem of policing the line between genuine and fictional relocations. Secondly, there are signs that the procedural onus on debtors to evidence their claim to English jurisdiction before a bankruptcy order is made has been increased, a move that can be interpreted as a form of institutional resistance designed to raise the barrier to entry. Having sought to illuminate the problems, costs and inconvenience associated with forum shopping from a practitioner standpoint, we explore the ‘good’ versus ‘bad’ forum shopping question and consider the scope for reform of the EC Regulation. Adopting a creditor perspective, we conclude provisionally that the Regulation could usefully be reformed to limit the scope for insolvent debtors to switch their COMI in anticipation of filing for bankruptcy. Copyright © 2010 John Wiley & Sons, Ltd.     

The legal responses of Canada and Poland to international bankruptcy and insolvency with a focus on cross‐border insolvency law

This article discusses and compares the respective legal responses of Canada and Poland to international bankruptcy and insolvency with a focus on cross‐border insolvency law. Specifically, the issues addressed herein concern jurisdiction, recognition of foreign bankruptcy proceedings, and co‐operation with foreign courts and foreign administrators. Notwithstanding some real differences between Canadian and Polish international insolvency proceedings, both legal regimes may be compared, since both countries have adopted many of the principles contained in the UNICTRAL Model Law on Cross‐Border Insolvency. The major impetus behind the changes established by Canada in its bankruptcy and insolvency laws have been the economic realities produced by the North American Free Trade Agreement. Likewise, Poland's accession to the European Union (EU) has been a major catalyst for revising the Polish Insolvency and Restructuring Act. Part II of the said act is entirely devoted to international insolvencies. However, following Poland's adherence to the EU, those sections of the Polish Insolvency and Restructuring Act that deal with international or cross‐border insolvencies will be severely limited or constrained in scope. The article indicates that Poland, the EU and Canada are taking the necessary steps to meet the needs of debtors who would like to restructure in an international setting. Copyright © 2006 John Wiley & Sons, Ltd.     

The new “alert procedures” in Italy: Regarder au‐delà du modèle français?

Italy is about to enforce the first comprehensive reform of its corporate insolvency framework since the Second World War. The new Codice della Crisi d'Impresa e dell'Insolvenza builds on international recommendations, European laws and foreign best practice. One area that has been subject to substantial influence from foreign models is preventive insolvency mechanisms, where the Italian Legislator drew from the French and English experiences, as these countries have a widely recognized reputation of excellence in this field. Nevertheless, the similarities between the Italian and the English system – particularly with reference to the Italian panel of experts in the alert procedures and the English “pre‐pack pool” in pre‐packaged administrations – have so far been overlooked in the academic literature. This article sheds some light on the degree of cross‐fertilization between the Italian panel of experts in the procedure d'allerta and the English pre‐pack pool in pre‐packaged administration. The primary purpose of this study is to investigate whether regulatory reforms are needed to support the activity of the Italian panel in promoting restructuring deals for debtors in distress.     

Does pre‐packed bankruptcy create value? An empirical study of postbankruptcy employment retention in The Netherlands

In recent years, there has been growing interest in whether pre‐packed bankruptcy can be a mechanism through which firms facing imminent insolvency can preserve value. Although an extensive body of literature exists on “pre‐packs,” whether such techniques really preserve value remains ambiguous. By analysing bankruptcy proceedings filed with Dutch courts in the period 2012–2018 through the lenses of real options and debt overhang theory, we examined employment retention postbankruptcy as a consequence of the type of bankruptcy proceeding (pre‐packed bankruptcy and conventional bankruptcy) and the severity of prebankruptcy financial distress. The results show that in the Netherlands, a pre‐packed bankruptcy, when compared with a conventional bankruptcy proceeding, positively impacts employment retention rates after bankruptcy. The severity of financial distress before bankruptcy does not affect employment retention rates postbankruptcy. This implies that despite the amount of resource slack, the preservation of employee value is better served under a pre‐packed bankruptcy than a conventional bankruptcy proceeding. This finding is important for insolvency practice, as up to 22 June 2017, employee rights in the Netherlands (including redundancy) were not considered to be automatically transferred to the firm acquiring the bankrupt debtor's assets when a pre‐packed bankruptcy was applied. Implications for insolvency regulation and practice are discussed.     

Evidence on the insurance effect of bankruptcy exemptions

Defaulting on one’s debts when experiencing an adverse event can help insure households against unexpected income risks. But the effect of allowing default on debt levels is ambiguous, not least because lenders may restrict access to credit. Hence the optimal punishment for bankruptcy is unclear. The US states allows householders to keep a variety of assets when filing for bankruptcy – the ‘bankruptcy exemptions’ – and these exemptions change substantially between states and over time. By exploiting these differences this study shows that raising the exemptions (i) marginally decreases the level of unsecured debt that household’s hold; (ii) makes consumption smoother. Thus, despite the effect on debt levels, the generous provisions to debtors in arrears may be helping US households to insure themselves against income risk.     

Establishing the need for a low‐cost Canadian debt relief procedure

Canada does not have a low‐cost bankruptcy option for debtors with low incomes and low assets. In this article, we present empirical evidence of the need for such an option by estimating the number of debtors who might benefit from it. We then review the successful low‐cost bankruptcy options in operation in New Zealand and in the United Kingdom and recommend that Canada adopt a similar system.     

Natural person ltd.: Towards a unified discharge regime for entrepreneurs and consumers

Personal insolvency proceedings are increasingly fulfilling an economic function, aimed at the rehabilitation of the debtor. The idea of the fresh start and second chance, including an early discharge of residual debts, is an important illustration thereof. Despite the fact that this evolution is noted in all personal insolvency procedures, both with regard to entrepreneurs and consumers, debt discharge used to be easier to justify and more readily granted to entrepreneurs (traders) than to non-entrepreneurs. Clear examples of the discomfort legislators seem to have with discharging unpaid debts of consumers are the EU Member States that differentiate between commercial and consumer insolvency procedures. In addition, the narrative of promoting entrepreneurship is now driving EU insolvency reforms. That (narrow) focus leads Directive 2019/1023/EU to make the same distinction between insolvent individual entrepreneurs and other natural persons, offering the former a full discharge of debt after a reasonable period of time, while providing no mandatory discharge principles for the latter. This means that not all natural persons are equal when it comes to the possibility of having a second chance, despite compelling evidence that shorter discharge periods lead to more productive individuals. The question therefore arises as to whether EU Member States should run separate discharge systems for entrepreneurs and consumers, and whether this is justified in relation to its purpose. Focusing on natural persons in an insolvency context, this article argues that the objectives of providing a fresh start and second chance, by promoting debt discharge, are as relevant for consumer debtors as they are for entrepreneurs.     

Reorganizing Czech Businesses: A Bankruptcy Law Reform under a Recession Stress‐Test

The new Czech Insolvency Act, featuring a brand new reorganization option for business debtors, has now been in force for over 3 years—a period of a severe downturn in the Czech (and the global) economy. This presents an opportunity to observe the workings of the new insolvency law on a “recession‐loaded” empirical dataset extracted from the on‐line insolvency register also introduced as part of the reform. This is the goal of this article, the subject matter of which is an initial empirical look at insolvency proceedings conducted over debtors whose reorganization attempts had been allowed in the years 2008 and 2009. Copyright © 2011 John Wiley & Sons, Ltd.     

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.     

Seven Ways to Deal with a Financial Crisis: Cross‐Country Experience and Policy Implications1

This article presents a taxonomy of financial restructuring strategies that have been used by national policy makers to manage financial crises in the past. The goals of financial restructuring are to preserve or, if necessary, restore the debtor‐creditor relationships on which the economy depends for efficient allocation of capital, and to do so at minimal cost. Costs include not only the direct costs to taxpayers of financial assistance, but also—and likely more important—the indirect costs to the economy that stem from misallocations of capital and incentive problems resulting from the restructuring. Countries typically apply a combination of tools, including decentralized, market‐based mechanisms as well as government‐managed programs. Market‐based strategies generally aim to strengthen the capital base of financial institutions and borrowers using some mix of debt forgiveness and capital infusions. Government‐led restructuring strategies include the establishment of entities to which non‐performing loans are transferred as well as government‐assisted sales of domestic financial institutions, often to foreign entrants. Market‐based mechanisms can provide low‐cost ways of resolving the coordination problems faced by countries in the wake of massive debtor and creditor insolvency, particularly when those mechanisms are effective in achieving the desirable objective of selectivity—that is, devoting taxpayer resources only to those borrowers and banks that, with temporary assistance, will be capable of sustaining themselves in the future. But limiting their range of application mainly to developed economies, such market‐based mechanisms also depend on an efficient judicial system, a credible supervisory framework and authority with sufficient enforcement capacity, and lack of corruption in implementation. Although government‐managed programs may not seem to depend as heavily on well‐functioning legal and regulatory institutions, such approaches—especially the transfer of assets to government‐owned asset management companies—also rely to some extent on such institutions. Asset management companies are less likely to achieve their goal of resolving the overhang of debt at reasonable cost when legal and political institutions are weak and ownership of domestic creditors and debtors is highly concentrated. Especially in such cases, complexity and failure to consider incentive problems when designing specific rules governing financial assistance can aggravate moral hazard problems, unnecessarily raising the costs of resolution. Resolution mechanisms tend to be most successful when—like across‐the‐board debt forgiveness programs implemented through redenominations of debt—they are simple in design and afford quick resolution of outstanding debts, offering little discretion to governments while providing incentives for the private sector to work down the remaining debt overhang.