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Issues Concerning Insolvency Reforms in Asia

Issues Concerning Insolvency Reforms in Asia. Terence Halliday American Bar Foundation and Northwestern University. Three “conversations” over insolvency reforms. Global conversations between international institutions and nation-states Global organizations developed models, templates

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Issues Concerning Insolvency Reforms in Asia

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  1. Issues Concerning Insolvency Reforms in Asia Terence Halliday American Bar Foundation and Northwestern University OECD Forum on Asian Insolvency Reforms Seoul, Korea November 11-12, 2003

  2. Three “conversations” over insolvency reforms • Global conversations between international institutions and nation-states • Global organizations developed models, templates • Nation-states offer proving-grounds, experimentation • Regional conversations among neighbors • Innovations in one nation inform those in another • Local conversations among stakeholders • Negotiations over policy preferences

  3. Research Program: Globalization of Insolvency Regimes • Sponsored by the American Bar Foundation & National Science Foundation (USA) • Design: • Statistical analysis, world bankruptcy reforms, 1978-1998 • Reform initiatives by global and regional organizations • IMF, World Bank, ADB, EBRD, INSOL, IBA, UNCITRAL • National reforms in Asia, Central and Eastern Europe • China, Indonesia, Korea • Perspective: • Independent – of any organizations engaged in insolvency reforms • Empirical – based on multiple sources of data • Institutional or systemic – specialists in theories of institutional design and functioning

  4. Observations about Insolvency Law-Making in Asia

  5. 1. Asian Reforms Reflect Regional and Global Initiatives Benefits of multilateral initiatives: • Concentrate expertise • Distill experience • Cross-fertilize national experiments • Commit tangible resources • Disseminate information

  6. 1. Global Initiatives, contd Significance for Asian reforms: • Substantive convergence towards rescue regimes, with real threat of liquidation • Consultative process has broadened progressively • World Bank regional consultations • Culminating in UNCITRAL’s global legislative forum—representation of all regions, legal families, key INGOs (Legislative Guide on Insolvency) • Global models are constructive • Codify knowledge and experience • Global models should be viewed as experimental • Which elements are fundamental, which variable? • Are ‘best practices’ ever universal, always contextual?

  7. 2. Insolvency Law-Making in Asia is Recursive (Cyclical) Cycling between law on the books and law in practice, bankruptcy reforms are: • Always incomplete, produce unintended consequences • Driven by internal dynamics (engines) • Professionals widening, narrowing the gap • Professionals contesting approaches to law • Stakeholders following iterative strategies • Often stimulated by external forces Cycles occur differently in China, Indonesia, Korea Repeated cycles may reflect: • Successive moves to a higher equilibrium, legal capacity • Unrealistic expectations, lack of political will or capacity

  8. 3. Insolvency Law-Making in Asia Produces Conflicts Among Policy Norms Three norms: • Efficiency (purely economic criterion) • Equity (distributive policy criterion) • Stability (social and political criteria) National Experiences: • Korea: between efficiency and equity • China: between efficiency and stability

  9. 4. Insolvency Law-Making in Asia is embedded in Economic, Political and Social Systems Political systems (distribution of power in a society) Example: Korea: challenges for state to redistribute its power internally, to retract from economic guidance Economic system (distribution of wealth) Example: Indonesia: significance of corporate restructuring for ethnic Indonesian/Chinese Indonesian relationship in organizing the economy Social system (organization of civil society, culture) Example: China: changes in status, social security system, and its impact on adoption of a comprehensive bankruptcy law

  10. 5. Insolvency Systems in Asia may vary by Types of Capitalism and Commercial Culture Varieties of capitalism exist in Europe and North America—why not Asia? • Liberal market economies (U.S., Britain, Australia, New Zealand) • Coordinated market economies (e.g., Germany, France, Scandinavia) Varieties of commercial culture may also vary among nations—why not Asia? • Transactional business cultures • Relational business cultures Insolvency systems may need to reflect varieties of capitalism and commercial culture

  11. Implications for Reforms in Asia • Find a balance between global and local imperatives • Global designers recognize national variations • National reformers value global/regional models • Expect systematic variations on global themes • What are universals? What are particulars? • UNCITRAL’s solution: acceptable alternatives • Learn from comparable situations • What are the circumstances that determine whether a success in one country will also succeed in another? • Identify institutional contexts and affinities • Insufficient attention to embeddedness in multiple systems • Insufficient specification of institutional conditions of success or failure • Moderate expectations • Much ‘negotiation’ between global and national models will take time

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