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.     

政府监管、自主裁量与审批效率

本文以2004年至2009年我国证券市场中申请撤销特别处理的ST类公司为研究样本,考察了转轨经济环境下我国政府监管部门执行自主裁量审批的效率。通过研究,我们发现:(1)监管部门在对ST摘帽进行审批时,在精确性规则的基础上明显地运用了原则性规定,利用自主裁量的审批空间考察了申请公司的财务特征以及公司治理水平;(2)摘帽成功的公司其后续财务业绩、盈余质量显著优于摘帽失败的公司,监管部门运用自主裁量审批权将实质上未达要求的公司筛选出来,并对其作出区别对待。本文对于理解和评价政府监管在我国资本市场中的作用、政府审批的实际执行效率,以及重新审视政府职能转变获得的进展等问题,提供了新的可供参考的理论依据和经验证据。     

Reconsidering Procedural Consolidation for Multinational Corporate Groups in the Context of the Recast European Insolvency Regulation

Procedural consolidation, as a solution to the rescue of insolvent multinational corporate groups (‘MCGs’), is said to be able to preserve group value for creditors. This article explores the desirability of procedural consolidation in the EU in the light of theories of corporate rescue law, cross‐border insolvency law, multinational enterprises and relevant EU cases with reference to the European Insolvency Regulation. It argues that, based on current cross‐border insolvency rules in the EU, there is an inherent difficulty for procedural consolidation in balancing the goal of preservation of group value and the goal of certainty. The article also considers the new ‘group procedural coordination proceedings’ offered by the Recast European Insolvency Regulation and argues that it may help to supplement the gap left by the procedural consolidation in the EU. Copyright © 2017 INSOL International and John Wiley & Sons, Ltd.     

Groups of companies in the Recast European Insolvency Regulation: Around and about the “group”

Regulation (EU) 2015/848 (Recast European Insolvency Regulation/Recast EIR) contains a set of articles dedicated to the insolvency proceedings relative to members of groups of companies. No substantial consolidation or any procedural nature is envisaged. Article 2(13) of Regulation 2015/848 clarifies that, for the purposes of the same, a “group of companies” must be understood as “a parent undertaking and all its subsidiary undertakings.” However, many doubts arise when one goes deeper into that definition. The author deals with some of those problems and gives some suggestions to overcome them.     

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.     

Pricing for Multiline Insurer: Frictional Costs,Insolvency, and Asset Allocation

This article examines multiline insurance pricing based on the contingent claim approach in a limited liability and frictional costs environment. Capital allocation is based on the value of the default option, which satisfies the realistic assumption that each distinct line undertakes a pro rata share of deficit caused by insurer insolvency. Premium levels, available assets, and default risk interact with each other and reach equilibrium at the fair premium. The assets available to pay for liabilities are not predetermined or given; instead, the premium income and investment income jointly influence the available assets. The results show that equity allocation does not influence the overall fair premium. For a given expected loss, the premium-to-expected-loss ratio for firms offering multiple lines is higher than that for firms only offering a single line, due to the reduced risk achieved through diversification. Premium-to-expected-loss ratio and equity-to-expected-loss ratio vary across lines. Lines having a higher possibility or claim amount not being paid in full exhibit lower premium-to-expected-loss ratio and higher equity-to-expected-loss ratio. Positive correlation among lines of business results in lower premium-to-expected-loss ratio than when independent losses are assumed. Positive correlation between investment return and losses reduces the insolvency risk and leads to a higher premium-to-expected-loss ratio.     

Insolvency,tax and liquidation distributions: dividends,capital gains and the dead hand of the past

Shareholders are normally entitled to the surplus, if any, which remains after a liquidator has paid off the company's creditors and discharged all of its outstanding liabilities. Surplus distribution to shareholders is an anticipated event in the liquidation of a solvent company. Shareholders in insolvent companies, by contrast, are likely to be pleasantly surprised to receive surpluses prior to the cancellation of failed investments. Taxation liabilities are likely to arise for the shareholders in both events—under independent and, to a degree, inconsistent regimes provided by the Income Tax Assessment Act 1936 (Cwth) (‘ITAA36’) and the Income Tax Assessment Act 1997 (Cwth) (‘ITAA97’). This paper analyses Australian taxation of liquidation surpluses, noting historical factors and the approaches taken in four comparable tax jurisdictions. Company law applicable to liquidation surplus distributions is surveyed by way of introduction. Copyright © 2006 John Wiley & Sons, Ltd.     

Defining groups of companies under the European Insolvency Regulation (recast): On the scope of EU group insolvency law

This article examines the general scope of application of the provisions on insolvency regarding members of a “group of companies”, as included in Chapter V of the European Insolvency Regulation (recast) (“Recast EIR”), in order to review whether that scope is appropriate to deal with the different group structures in which business may be conducted. With the definition for a “group of companies” playing a paramount role in determining the scope of these provisions, the article includes a thorough analysis of the current definition for a “group of companies” as included in the Recast EIR. Based upon a teleological approach, the article argues in favour of an independent, broad and flexible interpretation of “group of companies”, in order to include a large number of groups within the scope of the Recast EIR's provisions regarding group insolvencies.     

Predation,Protection, and Accumulation: Endogenous Property Rights in an Overlapping Generations Growth Model

We study a simple growth model with overlapping generations in which property rights are insecure. Insecurity of property rights leads to predation. Due to predation some of the resources are used for protection purposes. Both predation and protection remove resources from the accumulation process. In the model individuals allocate their labor between working for firms and appropriating output from them. Firms allocate their capital between production and protection. Without government, the model generates a unique but inefficient equilibrium. We show that in this equilibrium the level of output is increasing in the rate of effectiveness of protection, the relative utility of honesty, and the discount rate. Further, the equilibrium level of output is dynamically inefficient. We then extend the model to include a government as the sole provider of the public good “protection”. Protection is assumed to be financed by a capital tax imposed on firms. The model then yields multiple equilibria, with both a stable high-protection low-predation equilibrium, and a stable low-protection high-predation equilibrium. Which equilibrium a country is most likely to achieve, and how difficult it is for a country to move to the more desirable low-predation high-protection equilibrium, depend crucially on the parameters of the model describing the economy’s institutional structure. Hence, the results of the model support the emphasis placed by the World Bank on the importance for growth of strengthening institutional structures in developing countries.JEL Code: D23, D90, O41     

Grounds for Refusal of Recognition of (Quasi‐) Annex Judgements in the Recast European Insolvency Regulation

Insolvency‐related (annex) actions and judgements fall within the scope of the Recast European Insolvency Regulation (‘Recast EIR’). That instrument both determines international jurisdiction regarding annex actions and sets up a simplified recognition system for annex judgements. However, tension between the Recast EIR's provisions on jurisdiction and recognition arises when a court of a state different from the state of insolvency erroneously assumes jurisdiction for annex actions. Such ‘quasi‐annex’ judgements rendered by foreign courts erroneously assuming jurisdiction threaten the integrity of the insolvency proceedings. Besides, the quasi‐annex judgements may violate the effectiveness and efficiency of the insolvency proceedings as well as the principle of legal certainty. In this article, it is argued that even the current legal framework may offer some ways to avoid the recognition of such quasi‐annex judgements. First, the scope of the public policy exception may be extended in order to protect the integrity of the insolvency proceedings from the quasi‐annex judgements rendered by foreign courts erroneously assuming jurisdiction. Second, it may be argued that quasi‐annex judgements do not equal real annex judgements and therefore do not enjoy the automatic recognition system provided by the Recast EIR. At the same time, their close connection to the insolvency proceedings – disregarded by the forum erroneously assuming jurisdiction – may exclude quasi‐annex judgements from the scope of the Brussels Ibis Regulation, as well. As a consequence, those quasi‐annex judgements may fall within the gap between the two regulations, meaning that no European instrument instructs the courts of the member state addressed to recognise quasi‐annex judgements. Copyright © 2017 INSOL International and John Wiley & Sons, Ltd.     

我国税收协定谈判工作文本第5条的修改、锯释与适用

鉴于我国在当前国际税收关系中收入来源国地位不断强化的趋势,我国应当及时调整国际税收政策.因此,我国应根据联合国税收协定范本,对我国税收协定谈判工作文本第5条有关"常设机构"的内容进行修订、解释和适用工作,以扩大收入来源国税收管辖权.     

Diversity and social progress in the next millennium: an evolutionary perspective

An evolutionary framework for speculating about some of the socio-cultural and genetic diversity issues of the next millennium is developed. Human populations (societies) are basic biological and socio-cultural units. The nature of human societies is shaped by two kinds of linked evolutionary process: biological and socio-cultural. These evolutionary processes, in turn, are driven by human interactions with the physical environment, microorganisms, other species, other human populations, and by technological innovations. Preservation of genetic and socio-cultural diversity is identified as a crucial aspect of social progress over the next millennium. The impact of these ecological and technological ‘drivers of change’ on future evolutionary processes is discussed. While the world's affluent societies will be increasingly liberated from nature's constraints and enriched by technological innovations, it is questionable, given historical experience, whether poorer ones will share in the prosperity. Significant innovations in socio-cultural evolution, including new forms of governance, will be required to harness the accelerating forces of change and to ensure future social progress for all peoples.     

Business Rescue in Insolvency Law in Europe: Introducing the ELI Business Rescue Report

In a European study, written under the auspices of the European Law Institute, the authors have designed elements of a legal framework that will enable the further development of coherent and functional rules for business rescue in Europe. Based on the recommendations of international organisations, such as UNCITRAL and the World Bank, as well as the insolvency laws of EU Member States, comparative research has led to a lengthy report of 10 chapters and more than 100 recommendations which are described in this article. They range from the need for professional and honest parties involved in the process (insolvency practitioners, turnaround managers, courts and company directors) to the evaluation of specific tools (such as a stay on enforcement actions of creditors and forms of available finance) and procedural safeguards to enable serious rescue efforts of viable businesses, while protecting justified interests. Copyright © 2018 INSOL International and John Wiley & Sons, Ltd.     

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.     

Appointing and Remunerating Insolvency Practitioners in Japan: The Roles of Japanese Courts

Japanese courts play an important role in appointing and remunerating insolvency practitioners. This article examines the roles of courts on the basis of academic and practitioner literature, judicial decisions and interviews with practitioners and former and current judicial officers. First, the article focuses on the methods used to appoint practitioners and the evolution of the system at the Tokyo District Court, Japan's busiest insolvency jurisdiction. Second, the article examines the courts' roles in reviewing and setting practitioners' remuneration through another case study from the Tokyo District Court. Practices trialled and developed in Tokyo are often adapted for local purposes around Japan. The article argues that the courts' involvement has helped to keep the cost of resolving corporate insolvency in Japan down. The review and setting of remuneration deserves particular attention with the increasing prevalence of pre‐packaged and informal restructuring that prima facie appears to allow for greater freedom to set remuneration as between the practitioner and debtor‐client. The article uses a case study to demonstrate that pre‐packaged restructuring is still influenced by the court, however, arguing that the relationship between the court and practitioners remains important. Finally, the article suggests that changes in Japanese insolvency practice and external factors may require the courts and the profession to revisit approaches to appointing and remunerating practitioners. Copyright © 2017 INSOL International and John Wiley & Sons, Ltd.     

Adaptation and change in the Australian life insurance industry: an historical perspective

In the wake of the deregulation of the financial sector in Australia in the 1980s and 1990s the life insurance industry has undergone a period of rapid change and reorganisation. Part of this adjustment has been the move towards the integration of financial service provision and the rise of bancassurance. This paper investigates the strategies adopted by Australian life insurers as they moved into the increasingly competitive environment triggered by the lifting of government restrictions on banking practices. It compares the approach of life insurers with that adopted in an earlier period of expansion and change. During the 1950s and 1960s an influx of foreign owned insurance companies into the Australian market precipitated the diversification of domestic life insurers into other insurance markets. The catalyst for change in both cases was the change in information costs brought about by the change in the competitive environment. The experience of the Australian life insurance market would suggest that there is a link between changing information costs and changing organisational structures. However this link is circumscribed by the institutional environment.     

Regulation,supervision and deposit insurance for financial cooperatives: an empirical investigation

This paper analyses the impact of different regulation and supervision approaches, as well as deposit insurance schemes, on the development of financial cooperatives in developing countries, using random and fixed effects estimators. Information on laws regulating financial cooperatives, the supervisory approaches adopted, and deposit insurance schemes in sixty-five developing countries were collected—mostly—from original legislations for the period 1995–2014. Key findings suggest that indicators of financial cooperative development are positively correlated with the existence of a specialized regulation; supervision under non-bank financial supervisory authorities; and the presence of deposit insurance schemes, while general cooperative society’s regulations and banking regulations are negatively correlated with financial cooperatives’ indicators. These results are robust after controlling for economic and institutional factors as well as potential endogeneity bias.     

社会权利与需要满足：农村社会保障的一个分析视角

农村社会保障,是对于以遭受不确定性与确定性风险包括自然风险与人为风险为常态的农民的社会保护。由于城乡二元结构的历史沿革,庞大农民群体被排斥在社会保障体系边缘,需要未满足且呈非均等化供给态势。运用社会权利与需要满足理论厘清建构农村社会保障的必要性,进行可行性分析,阐明保障每一位公民普遍享有“无差序”的社会权利与实现需要满足,以及提高生活质量,是农村社会保障制度的应然诉求。