The Use of Noncourt‐Based Corporate Rescue: Does the Australian Voluntary Administration Procedure Provide a Model for China?

In the recent international history of insolvency law reform, the reform of corporate rescue and restructuring has been an ongoing project. In China, the enactment of the Enterprise Bankruptcy Law 2006 saw the introduction of a bankruptcy reorganisation procedure that incorporates the debtor‐in‐possession model found in Chapter 11 of the US Bankruptcy Code. However, the Chinese corporate rescue procedure has been significantly underused due in part to various drawbacks associated with this court‐based and highly politicalised process. This paper explores the possibility of reforming China's current corporate rescue regime by drawing upon the Australian voluntary administration procedure. Found in Part 5.3A of the Corporations Act 2001 (Cth), this procedure was designed to provide a relatively swift, inexpensive and flexible corporate rescue mechanism for companies in financial distress. It comprises a noncourt based mechanism under the control of one or more professionally qualified private administrators. It is interesting to note that the UK also moved away from exclusive reliance upon court‐based administration procedures following the passage of the Enterprise Act 2002. This moved the UK closer to the Australian practitioner‐dominated approach to corporate rescue. This paper argues that the addition of a voluntary administration‐style procedure to China's current corporate rescue regime may be needed as China develops its market economy based on the rule of law. Copyright © 2017 INSOL International and 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.     

China's new Enterprise Bankruptcy Law—A great leap forward,but just how far?

The closure of many small and medium enterprises (SMEs) following the global financial crisis of 2008 spurred the Chinese government to follow its international counterparts in issuing an economic stimulus package. While it was effective in preventing many financially distressed SMEs from failure by boosting demand for its businesses, in the long run, such SMEs should be rescued through a statutory regime, which affords them temporary protection from creditors and provides them an opportunity to restructure their businesses. In doing so, the premature liquidation of SMEs would be prevented and SMEs with viable businesses but in temporary financial difficulties would be given a chance to succeed again. Although China's new Enterprise Bankruptcy Law (EBL) has shortcomings, it improves upon its predecessor legislation and, since it is still at an infantile stage of development, is bound for further reform. Despite the EBL's success in bringing Chinese corporate bankruptcy laws in line with international standards, full compliance with the UNCITRAL Model Law on Cross‐Border Insolvency and UNCITRAL Legislative Guide on Insolvency Law remains to be seen. In September 2008, the South China Morning Post newspaper reported that the number of (applications for) corporate reorganization and bankruptcy cases had dropped, “leading to widespread speculation there are problems in the law's practical application”. 1 This article examines the implementation of the EBL, critiques key aspects of the EBL and argues for a comprehensive assessment of the EBL and for bringing the EBL in full compliance with the international standards on cross‐border insolvency. Copyright © 2010 John Wiley & Sons, Ltd.     

保险系统性风险的风险溯源与监管创新

近年来,保险系统性风险与宏观审慎监管问题逐渐受到世界各国重视。目前我国的保险监管制度虽已逐渐将保险系统性风险纳入监管范围,但现有的监管措施过于简陋,难以有效防范、化解系统性风险。为此,在厘清保险系统性风险内生性根源与制度性根源基础上,反思我国保险系统性风险既有监管规则之不足,认为我国保险系统性风险监管的应然诉求是建立金融机构协调合作机制的法制化路径、提高保险宏观审慎监管相关立法、将现代科技手段运用与保险宏观审慎监管实践相结合。     

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.     

Proposals to Establish a Partnership Bankruptcy Regime in China: With Lessons from the UK and USA

Following in the steps of the USA and UK, China introduced partnerships with limited liability in 2006, the same year that a market‐oriented bankruptcy statute was enacted. Although the bankruptcy statute enshrines basic elements of modern bankruptcy law, it fails to stipulate specific rules for partnership bankruptcy. As partnership with limited liability acquires increasing importance, especially limited partnerships as a popular form of private equity firms, a partnership bankruptcy regime becomes indispensable. This article considers the experience of the UK and USA in order to make proposals to establish a partnership bankruptcy regime in China. Although partnership bankruptcy law can be formulated by analogy to corporate bankruptcy law, special considerations must be given to the characteristics of partnership such as unlimited liability and lack of separation of management from ownership. Further, as partnership bankruptcy may lead to partner bankruptcy and vice versa, conflicts between partnership creditors and partners' personal creditors must also be considered. Copyright © 2014 INSOL International and John Wiley & Sons, Ltd     

Question the Unquestionable Beauty of A Collective Proceeding for All Sovereign Debt Claims

The new challenges presented by the current Eurozone crisis and the NML Capital v. Argentina case are likely to shift the international community's attention from holdout behavior in foreign bonds restructuring to inter‐creditor issues. In the past years, many academics, and nongovernmental organizations concerned with debt relief, have put forward proposals to create a bankruptcy regime for states. But none of these proposals has seriously examined what rules should apply to treatment among creditors. Moreover, all insist that there must be a collective proceeding for all sovereign debt claims, without explaining why. This approach is simply taken for granted, as it is one of the fundamental principles of bankruptcy law. The article questions this orthodoxy through examining the nature of sovereign debt crisis, the feature of the limited pool of sovereign assets, and the nonliquidable fact of the sovereign debtor. It also argues that the common pool problem does not exist in the sovereign debt context.     

机构投资者担心企业应用衍生品进行投机吗-来自中国上市公司的证据

以2007-2011年应用过衍生品的中国上市公司为样本,检验机构投资者持股与企业应用衍生品及其投机行为的关系,研究发现:机构投资者担心企业应用衍生品尤其是应用衍生品的投机行为会损害其自身的利益,并且这种担心超出了机构投资者通过积极的监督来保障自身利益的意愿,因此,机构投资者倾向于减少对那些应用衍生品公司的投资,大多维持在一个较低的水平.此外,证据还表明:在我国上市公司中,机构投资者的投资并不普遍,份量也较轻;衍生品在我国上市公司中的应用亦不普遍并且应用的程度很低,大多数应用衍生品的公司是为了套保,但一旦投机则非常严重;机构投资者较为看重应用衍生品公司的成长性,而反感其业绩与盈余管理行为.     

On the Efficiency of Bankruptcy Law: Empirical Evidence in Spain

The current economic crisis is showing one of the main problems that many companies in financial distress have to face, namely, the impact of bankruptcy law in relation to companies and firms. This paper aims to analyze the bankruptcy law ex‐ante efficiency when companies are in financial distress. To test it out, two research questions are submitted: (i) Is solvency, the criterion used in the Spanish law, the best one to assess the relative significance of the main indicators, which determine bankrupt firms? (ii) Is the Spanish bankruptcy law efficient according to solvency or are there better criteria? To answer them, a logistic regression model is conducted. The sample embraces 1,387 firms in Spain, the data being obtained from 12 Commercial Justice Courts complemented with financial information. The main conclusion is that the solvency criterion is adequate to classify bankrupt companies although currently Spanish Bankruptcy law is not as efficient as it could be. Additionally, the relevant companies' indicators, which explain the financial distress procedure, are presented. Copyright © 2013 INSOL International and John Wiley & Sons, Ltd     

The Empirical Studies of China's Enterprise Bankruptcy Law: Problems and Improvements

Over the past 9 years since the implementation of China's Enterprise Bankruptcy Law in 2007, it has contributed to some measures of regulating market practice and rearrangement of market resources and has become an integral part in an improved legal system of China's market economy. However, a closer look at the effect of implementing the Enterprise Bankruptcy Law shows that the number of bankruptcy cases after its implementation, instead of increasing, has taken on a trend of decreasing. Even under the influence of the 2008 financial crisis, no significant increase in the number of Chinese bankrupt enterprises means that China's Bankruptcy Law failed to play its due role, leaving a large gap as desired. As such, this article aims to examine the problems arising from the implementation of the Bankruptcy Law and, taking this as guidance, probe into the reasons hidden behind and propose possible improvement measures. It is expected that the Bankruptcy Law would increasingly play a key role in the development of China's market economy, particularly under the current situation where Chinese government proposes to clean up zombie businesses. Copyright © 2018 INSOL International and John Wiley & Sons, Ltd.     

“强者”一定“恒强”吗？——来自中国股票型公募基金动量效应研究的新发现

以2014-2018年中国股票型公募基金市场为样本，改进基金动量组合构造方法，并提出中国公募基金市场“新动量效应”。研究发现：传统动量效应稳健性较差并存在较高“动量崩溃”风险，而剔除历史上表现“最好”的基金，则可以显著提高动量组合收益稳健性;同时，“新动量因子”具有更加稳健的股票横截面定价能力；最后，从“投资者关注”和“处置效应”两个角度，对“新动量因子”存在机制作出了理论解释。     

Apples and oranges? Corporate rescue and functional convergence in the US and UK

This paper challenges the standard characterisation that US law in the sphere of corporate bankruptcy is ‘pro debtor’ and UK law is ‘pro creditor’. It suggests that the traditional thesis is, at best, a potentially misleading over‐simplification. It also offers the conclusion that there is functional convergence in practice, while acknowledging that corporate rescue, as distinct from business rescue, still plays a larger role in the US. The functional convergence has partly come through the UK Enterprise Act 2002 but the paper suggests that the main move has been that of US law and practice in a UK direction with more emphasis on business disposals and speedier cases than on corporate reorganisations, as traditionally understood. This mirrors practice in the UK where the emphasis has always been on business disposals. Unfortunately, the current economic recession on both sides of the Atlantic has shone a heightened spotlight on business bankruptcy and is likely to generate further changes in practice and ultimately legislation. Copyright © 2009 John Wiley & Sons, Ltd.     

Wealth distribution in Chinese bankruptcy reorganization law and practice

Wealth distribution provisions in bankruptcy reorganization law, which regulate the distribution of the debtor's overall value among all the interested parties with an aim of ensuring a fair and equitable distribution, constitute an important part of the bankruptcy reorganization law. This article first examines the wealth distribution provisions contained in Chinese bankruptcy reorganization law from a Sino‐US perspective and then explores the wealth distribution in Chinese bankruptcy reorganization practice through an empirical study of 18 bankruptcy reorganization cases of listed corporations in China. After an analysis of Chinese legal provisions on wealth distribution and their application in practice, this article draws the conclusion that wealth distribution in Chinese bankruptcy reorganization practice is far from being fair and equitable, which may cause abused use of the reorganization proceeding and distort the operation of the bargaining mechanism. Reform suggestions for Chinese bankruptcy reorganization law are proposed at the end. Copyright © 2011 John Wiley & Sons, Ltd.     

The destabilizing effect of mutual fund herding: Evidence from China

This paper examines the impact of mutual fund herding on the stability of China's stock market through the lens of idiosyncratic volatility. We show that mutual fund herding significantly amplifies future idiosyncratic volatility up to one-and-half years, suggesting a persistent destabilizing effect. We find that the destabilizing effect is larger for stocks with high mutual fund ownership and in high investor-sentiment periods. Furthermore, mutual fund herding destabilizes the stock market even further after China implemented the share reform in 2011. The destabilizing effect of mutual fund herding is robust to alternative measures of risk and China's institutional setting helps mitigate endogeneity concerns.     

The Chinese Approach Toward Cross‐Border Bankruptcy Proceedings: One Progressive Step Ahead

The birth of the law on enterprise bankruptcy of the People's Republic of China in 2006 was highly acclaimed. It was generally regarded as a modernized comprehensive legislative work at home and abroad. The “territorialism” approach adopted therein respecting foreign bankruptcy proceedings, however, has received floods of criticism ever since. It has left a great legal vacuum for the protection of foreign bankrupt debtor's assets in China. Foreign investors, however, may see dawn and have their confidence restored after the recent decision of the Supreme People's Court in the well‐known case of Thumb Environmental Technology Group v Sino‐Environment Technology Group, which was made on 11 June 2014. From this case on, with some limitations, the legitimate powers of foreign bankruptcy administrators might normally be ensured once foreign bankruptcy proceedings are initiated in the place of registration or place of principal business of the foreign debtor, whereby foreign administrators will be able to take effective measures to investigate, protect and dispose of the bankrupt's assets located within the Chinese territory.     

Voidable preference reform: a New Zealand perspective on shifting standards and goalposts

While there is consensus that some form of avoiding power is required in the context of a bankruptcy or company liquidation, there is little agreement on the means to implement a voidable preference regime. The New Zealand experience of the past eight years illustrates the inherent difficulties in designing a workable voidable preference regime. The New Zealand Companies Act 1993 replaced the debtor's intention with a test premised on the overall effect of the transaction with an exception for transactions in the ordinary course of business. The ordinary course of business exception became the most litigated and controversial aspect of the 1993 reforms and recently the government has announced its intention to abandon the ordinary course safe harbour in the pending round of insolvency reform. The paper examines the origins of the 1993 reforms and offers an explanation for the failure of the effects based regime. The New Zealand regime placed too much power in the hands of the liquidator with the result that creditors bore the cost and burden of justifying why the transaction should be saved. Although Parliament enacted the effects based regime with a view to promoting better equality of treatment amongst creditors the regime failed because it achieved too much equality. Copyright © 2003 John Wiley & Sons, Ltd.     

Bankruptcy laws and debt renegotiation

This paper analyzes the effect of the toughness of bankruptcy law on the number of liquidations in a simple model of borrowing and lending with asymmetric information, where the creditor cannot credibly commit to liquidate the firm if the default occurs. In our setting we consider a bankruptcy law to be a one-dimensional variable that influences creditor's expectation value of collateral. We find that there is an interval of the bankruptcy law, where the number of liquidations decreases in the toughness of the bankruptcy law. We also find that if the liquidation costs are high, softer bankruptcy law is preferred.     

基金投资行为能够预测经济吗？ ——基于宏观、中观、微观三个层面的实证检验

股市作为经济的晴雨表,基金因其投资行为的专业化被投资者所青睐,那么股票型基金在构建投资组合时是否会依据实体经济呢？本文从宏观、中观和微观三个层面,通过构建非平衡动态面板模型,实证检验我国基金超常规发展与经济增长之间的关系,以及基金投资行为对经济增长的预测作用。研究结果显示：从宏观层面来看,基金发展规模和机构投资者持股比例的增加与经济增长之间存在负相关关系;从行业层面来看,基金的行业持仓增加,则经济预期出现向好局面,表明基金具有一定的经济预判能力;从微观层面来看,预期经济上涨向好趋势时,基金管理人会在当期减持投资组合内的股票,并选择配置更多新股以寻求新的经济增长投资机会,这表明基金投资行为对经济增长具有一定的预测作用。     

Impact of exchange rate regime reform on asset returns in China

Employing monthly data over the period 1999–2010, this paper examines the impact of China's exchange rate regime reform in July 2005 on three major asset markets: house, land, and stocks. We test whether the reform, which switches from a fixed exchange rate regime to a managed floating one, has brought forward structural changes to asset return dynamics. The results suggest that the exchange rate regime switch exerted the most significant impact on house and land returns at the national level, in terms of both returns and their volatilities. In contrast, its impact on China's stock market was moderate, with no structural change being detected in its returns and only weak structural change being found in the dynamics of its volatility. We also find that in comparison with other popular explanatory variables, broad money supply and inflation have the largest explanatory power on housing and land returns in China after the policy reform.     

基于区制转移模型的金融周期时变特征研究

基于由金融资产价格、金融规模和金融景气三个维度构成的金融周期指数,考量金融周期的阶段性特征,在马尔科夫区制转换模型加入自回归项,利用金融周期的自回归进行区制转换,刻画出金融周期的区制特征,选取最优Copula函数对金融周期和经济周期的关联性特征.结果表明:中国金融周期分为三个较为明显的阶段;中国金融周期分为扩张和收缩两种状态,且扩张和收缩两种状态都具有极高的稳定性;滞后2阶的金融周期和经济周期之间有较强的正相关关系.