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Court-Supervised Restructuring of Large Distressed Companies in Asia: Law and Policy [Kõva köide]

(City University of Hong Kong)
  • Formaat: Hardback, 384 pages, kõrgus x laius: 234x156 mm
  • Sari: Contemporary Studies in Corporate Law
  • Ilmumisaeg: 28-Jul-2022
  • Kirjastus: Hart Publishing
  • ISBN-10: 1509952330
  • ISBN-13: 9781509952335
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  • Formaat: Hardback, 384 pages, kõrgus x laius: 234x156 mm
  • Sari: Contemporary Studies in Corporate Law
  • Ilmumisaeg: 28-Jul-2022
  • Kirjastus: Hart Publishing
  • ISBN-10: 1509952330
  • ISBN-13: 9781509952335
Teised raamatud teemal:
"This book provides an in-depth analysis of 4 economically significant Asian jurisdictions: Mainland China, India, Hong Kong and Singapore. These jurisdictions have recently either reformed - or are considering reforming - their corporate restructuring laws to promote regimes conducive to restructuring financially distressed, but otherwise economically viable, companies. Mainland China, India, Hong Kong and Singapore continue to adhere to a framework that requires the court's final approval but draw references from Chapter 11 of the Bankruptcy Code 1978 in the United States and/or the schemes of arrangement in the United Kingdom. However, the institutional and market structures are very different in Asia; in particular, Asia has a far higher concentration in shareholdings among listed firms, including holdings by families and the state, and a different composition of creditors. The book explains how, notwithstanding the legal transplantation, corporate restructuring laws in these Asian jurisdictions haveadapted and evolved due to the frictions in shareholder-creditor and creditor-creditor relationships, and the role of the state in resolving non-performing loans and financial distress of state-owned enterprises which are listed, or which issue public debt. The study argues that any reforms must go beyond professionalising the insolvency professionals and the judiciary but must be designed to address fundamental issues of corporate governance, bank regulation and enforcing non-bankruptcy rules. It offersinvaluable insights for academics and policy makers alike"--

This book provides an in-depth analysis of 4 economically significant Asian jurisdictions: Mainland China, India, Hong Kong and Singapore. These jurisdictions have recently either reformed – or are considering reforming – their corporate restructuring laws to promote regimes conducive to restructuring financially distressed, but otherwise economically viable, companies.

Mainland China, India, Hong Kong and Singapore continue to adhere to a framework that requires the court's final approval but draw references from Chapter 11 of the Bankruptcy Code 1978 in the United States and/or the schemes of arrangement in the United Kingdom. However, the institutional and market structures are very different in Asia; in particular, Asia has a far higher concentration in shareholdings among listed firms, including holdings by families and the state, and a different composition of creditors.

The book explains how, notwithstanding the legal transplantation, corporate restructuring laws in these Asian jurisdictions have adapted and evolved due to the frictions in shareholder-creditor and creditor-creditor relationships, and the role of the state in resolving non-performing loans and financial distress of state-owned enterprises which are listed, or which issue public debt.

The study argues that any reforms must go beyond professionalising the insolvency professionals and the judiciary but must be designed to address fundamental issues of corporate governance, bank regulation and enforcing non-bankruptcy rules. It offers invaluable insights for academics and policy makers alike.

Arvustused

Meticulously researched, well presented, and thoroughly referenced, this book represents a major contribution to insolvency scholarship. It will also be valuable to those with a more general interest in corporate restructuring laws as well as insolvency laws in Asia. The methodology will be of interest to comparative law scholars in Asia, the UK, and the US, not only to those with an interest in insolvency law. The book is an extremely valuable addition to the Hart Series on Contemporary Studies in Corporate Law. -- Jingchen Zhao, Nottingham Trent University * International Insolvency Review * This book plugs a significant gap in the literature concerning restructuring and insolvency law and policy in Asia and will be a valuable resource for academics, practitioners, and those who engage in policy formulation and law reform. -- Andrew Godwin, University of Melbourne * The Chinese Journal of Comparative Law * In this excellent new book Professor Wan critically analyses the development of corporate restructuring law in four Asian jurisdictions: Hong Kong, Singapore, Mainland China, and India. Her controlling argument is that all of these jurisdictions have borrowed ideas from corporate restructuring law in the US and the UK, but that the organisational and institutional environment is very different in each of them so that adaptations are necessary for the legal transplants to flourish in their new soil. The book makes a highly significant contribution to the literature ... What emerges is a fascinating, readable, rigorous, and highly compelling piece of research. * Sarah Paterson, Professor of Law, London School of Economics and Political Science, UK * Professor Wans new book provides a fascinating deep dive into the insolvency regimes of China, Hong Kong, India, and Singapore. Professor Wan traces the evolution of each regime and highlights the influence that American and English systems had on that evolution. In doing so, she develops a new framework for measuring the success of restructuring laws and persuasively challenges the idea that American and English principles of restructuring can simply be transplanted to any jurisdiction regardless of local institutions and laws.

This book is a must read for anyone interested in the law of corporate restructuring or comparative law more generally. * Anthony J Casey, Donald M Ephraim Professor of Law and Economics, University of Chicago, USA * In this masterful monograph, Professor Wai Yee Wan combines economic analysis with detailed institutional knowledge to assess the application of American- and British-style business reorganization law to the economies and legal environments of Mainland China, Hong Kong, India, and Singapore. Her book is rich in comparative information on these four Asian legal regimes, and she offers insightful conclusions and persuasive recommendations. Of particular importance is her original analysis of the challenges of the employment of an Anglo-American reorganization model in jurisdictions whose businesses are, as contrasted with those in the US and UK, characterized by concentrated share holdings. * Richard Squire, Professor of Law & Alpin J Cameron Chair in Law, Fordham Law School, USA * This book presents a theoretically rich and intellectually stimulating account of corporate restructuring in Hong Kong, Singapore, India and Mainland China. The corporate insolvency regimes of these jurisdictions have all been influenced to differing degrees by Anglo-American models. Wan interrogates the appropriateness of this in the very different economic and social context of business practice in these four Asian economies. Through careful examination of relevant law and the use of empirical data, she identifies a number of key differences that pull towards the need for these jurisdictions to consider their own policy imperatives and possible reforms. * Sally Wheeler OBE, Robert Garran Professor of Law, Australian National University, Australia *

Muu info

This important new work features a theoretical and empirical analysis of court-supervised restructurings of large distressed companies in Mainland China, India, Hong Kong and Singapore, in a comparative frame with the Anglo-American approach.
Preface vii
Acknowledgements ix
List of Abbreviations
xv
References to judicial and Policy Guiding Documents in Mainland China (Bilingual) xvii
List of Tables
xxi
List of Figures
xxiii
Table of Cases
xxv
Table of Legislation and Other Materials
xxxi
1 Introduction and Theoretical Framework
1(32)
1.1 Overview
1(7)
1.2 Restructuring Models in Anglo-America and Asia
8(4)
1.2.1 The US Pure Debtor in Possession Regime
8(1)
1.2.2 The Three UK Models
9(1)
1.2.3 Transplanting US/UK Restructuring Concepts in Asia
10(2)
1.3 Understanding the Interaction between Corporate Governance and Restructuring Law
12(5)
1.4 Building an Analytical Framework
17(5)
1.4.1 Management--Creditor and Shareholder--Creditor Conflicts
18(1)
1.4.2 Creditor--Creditor Conflicts
18(1)
1.4.3 Non-Performing Loans Management
19(2)
1.4.4 The Gatekeepers
21(1)
1.4.5 Non-Bankruptcy Rules on Enforcing Contracts and Directors' Duties
21(1)
1.5 Methodology
22(9)
1.5.1 Distinction between Deployment and Distribution
22(1)
1.5.2 Court Restructurings of Large Companies
23(1)
1.5.3 Choice of Asian Jurisdictions
24(2)
1.5.4 Framework of the Book
26(5)
1.6 Organisation of the Book
31(2)
2 Development of Corporate Restructuring Law in Four Asian Jurisdictions
33(24)
2.1 Introduction
33(2)
2.2 Emerging Jurisdictions
35(9)
2.2.1 Mainland China
36(3)
2.2.2 India
39(5)
2.3 Advanced Jurisdictions
44(11)
2.3.1 Hong Kong
44(7)
2.3.2 Singapore
51(4)
2.4 Conclusion
55(2)
3 The Agency Costs of Manager-Creditor and Shareholder--Creditor Relationships in Restructuring
57(44)
3.1 Introduction
57(3)
3.2 Institutional and Organisational Background
60(6)
3.2.1 The US and the UK
60(1)
3.2.2 Asia
61(5)
3.3 Strategies to Deal with Agency Costs of Manager-Creditor and Shareholder--Creditor Conflicts in Anglo-American Restructurings
66(7)
3.3.1 The Hold-Out Problem
66(4)
3.3.2 Heightened Friction between Creditors and Shareholders
70(3)
3.4 Addressing Information Asymmetry and Hold-Out Problems in Asian Restructurings
73(20)
3.4.1 Process of Bargaining: Mandatory Disclosure Regime
73(2)
3.4.2 Distribution of Proceeds of Restructuring and the APR in Asia
75(10)
3.4.3 Heightened Conflicts in Asian Restructurings
85(8)
3.5 Enhancing the Restructuring Regime: Lessons and Implications
93(6)
3.5.1 No One-Size-Fits-All Rule for APR and Cram-Down
94(1)
3.5.2 The Example of Corporate Governance
94(5)
3.6 Conclusion
99(2)
4 The Agency and Coordination Costs of Creditor--Creditor Relationships in Restructuring
101(51)
4.1 Introduction
101(2)
4.2 Institutional and Organisational Background
103(11)
4.2.1 The US and the UK
103(2)
4.2.2 Asia
105(8)
4.2.3 Distressed Debt and Loan Markets
113(1)
4.3 Strategies to Deal with Agency and Coordination Costs of Creditor-Creditor Conflicts in Anglo-American Restructurings
114(10)
4.3.1 The Deployment Question
115(3)
4.3.2 The Distribution Question
118(3)
4.3.3 Creditor Protection in Cram-Downs
121(2)
4.3.4 Existing Bank Creditor Providing New Finance
123(1)
4.4 The Features of Asian Restructurings
124(19)
4.4.1 The Deployment Question
124(7)
4.4.2 Distribution of Assets
131(12)
4.5 Enhancing the Restructuring Regime in Asia: Lessons and Implications
143(7)
4.5.1 The Advantages and Limits of the APR and Equal Treatment
143(3)
4.5.2 Reducing the Costs of Negotiation Among Creditors
146(2)
4.5.3 Recent Developments in Onshore and Offshore Restructuring
148(2)
4.6 Conclusion
150(2)
5 Managing Non-Performing Loans and their Impact on Agency and Coordination Costs in Two Emerging Jurisdictions
152(36)
5.1 Introduction
152(2)
5.2 Institutional and Organisational Background in the International Context for Resolving NPLs
154(2)
5.2.1 AMCs as Debt Aggregation Vehicles
154(1)
5.2.2 Developing the Market for Distressed Assets
155(1)
5.3 Institutional Background to NPLs in India and Mainland China
156(5)
5.3.1 India
156(4)
5.3.2 Mainland China
160(1)
5.4 AMCs and Variations to Agency and Coordination Costs in Restructuring
161(20)
5.4.1 AMCs in India
162(9)
5.4.2 CAMCs in China
171(6)
5.4.3 Variations to the Agency Costs of CAMCs in China
177(4)
5.5 Developing Active Distressed Loan Markets in India and Mainland China
181(4)
5.5.1 India
181(2)
5.5.2 Mainland China
183(2)
5.6 Conclusion, Lessons and Implications for Managing NPLs
185(2)
5.6.1 Incentivising CAMCs/ARCs
186(1)
5.6.2 Future of the CAMC/ARC Model and Distressed Loan Markets
187(1)
5.7 Postscript
187(1)
6 Insolvency Practitioners as Gatekeeper Intermediaries
188(29)
6.1 Introduction
188(3)
6.2 Role of Insolvency Practitioners: A Comparative Perspective
191(10)
6.2.1 The PIP Model
191(8)
6.2.2 Schemes of Arrangement with Insolvency Practitioner Having a Statutory or an Intermediary Role
199(2)
6.3 The Governance of Intermediaries: Accountability, Conflicts of Interest and Effectiveness
201(9)
6.3.1 Appointment and Accountability
202(2)
6.3.2 Fee Arrangements
204(2)
6.3.3 Conflicts of Interest
206(1)
6.3.4 Effectiveness of the Insolvency Practitioner
207(3)
6.4 Lessons, Implications and Options for Reform in Asian Jurisdictions
210(5)
6.4.1 Reconceptualising the Role of the Insolvency Practitioner
210(3)
6.4.2 Reforms Addressing the Insolvency Practitioner's Conflicts of Interest
213(2)
6.5 Conclusion
215(2)
7 Role of the Courts in Court-Supervised Restructurings
217(36)
7.1 Introduction
217(3)
7.2 Legislative Framework and Judicial Discretion in the US and the UK: Strengths and Limitations
220(7)
7.2.1 The Moratorium
220(3)
7.2.2 Plan Confirmation or Sanction of the Scheme of Arrangement
223(3)
7.2.3 Analysis
226(1)
7.3 Legislative Framework and Judicial Discretion in Asia
227(11)
7.3.1 Moratorium and Conditions
228(6)
7.3.2 Sanction of the Scheme
234(2)
7.3.3 Rescue Financing
236(2)
7.4 Lessons and Implications
238(7)
7.4.1 Leeway to Debtor's Management
239(1)
7.4.2 Cram-Down of Dissenting Creditors and Valuation
240(1)
7.4.3 Rescue Financing
241(1)
7.4.4 The Choice and Objectives of Regulation
242(3)
7.5 The Experience of Mainland China
245(6)
7.5.1 Improving Certainty and Predictability of Plan Approval through Judicial Pronouncements
247(1)
7.5.2 Addressing the Length of Time in Restructuring and Moratorium
248(2)
7.5.3 Analysis and the Future of Pre-Packs
250(1)
7.6 Conclusion
251(2)
8 Relationship between Restructuring Law, Enforcing Contracts and Directors' Duties
253(22)
8.1 Introduction
253(2)
8.2 Impact of Enforcing Creditor Rights on Restructuring Law
255(13)
8.2.1 Enforcement of Debts and Resolving Insolvency
255(2)
8.2.2 Usage of Formal Insolvency and Restructuring Law
257(11)
8.3 Analysis
268(1)
8.4 Directors' Duties and Incentives to Invoke or Use Restructuring Law
269(5)
8.4.1 Why should Incentives to Commence Insolvency Proceedings Matter?
269(2)
8.4.2 Incentives in Asia
271(3)
8.5 Conclusion
274(1)
9 Restructuring Law, Implications for Reform and Conclusion
275(19)
9.1 Introduction
275(1)
9.2 Seven Propositions in this Book
276(9)
9.3 Future Prospects for Reform in the Asian Jurisdictions
285(7)
9.3.1 Mainland China
285(2)
9.3.2 India
287(2)
9.3.3 Hong Kong
289(2)
9.3.4 Singapore
291(1)
9.4 Conclusion
292(2)
Appendices 294(8)
Bibliography 302(17)
Index 319
Wai Yee Wan is Associate Dean and Professor at the School of Law, City University of Hong Kong.