A reforma da legislação falimentar - 'principles and guidelines for effective insolvency and creditor rights systems

Páginas75-167

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Effective insolvency and creditor rights systems are an important element of financial system stability. The Bank accordingly has been working with partner organizations to develop principies on insolvency and creditor rights systerns. Those principies will be used to guide system reform and benchmarking in develop-ing countries. The Principies and Guide-lines are a distillation of international best practice on design aspects of these systems, emphasizing contextuai, integrated solu-tions and the policy choices involved in devei oping those solutions.

While the insolvency principies focus on corporate insolvency, substantial pro-gress has been made in identifying issues relevant to devei oping principies for bank and systemic insolvency, áreas in which the Bank and the Fund, as well as other international organizations, will continue to col-laborate in the coming months, These issues are discussed in more detail in the an-nexes to the paper.

The Principies and Guidelines will be used in a series of experimental country as-sessments in connection with the program to develop Reports on the Observance of Standards and Codes (ROSC), using a com-

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mon template based on the principles. In addition, the Bank is collaborating with UNCITRAL and other institutions to develop a more elaborate set of implementa-tional guidelines based on the principles.

Introduction and executive summary
  1. Since the 1997-98 financial crisis in emerging markets, considerable progress has been made in identifying the components of the global financial system and in articulating and applying standards and assessment methodologies for core system elements. The Principles and Guidelines for Effective Insolvency and Creditor Rights Systems contributes to that effort as an important milestone in promoting international consensus on a uniform framework to assess the effectiveness of insolvency and creditor rights systems, offering guidance to policymakers on the policy choices needed to strengthen them,

  2. The principles in Principles and Guidelines were developed against the backdrop of earlier and ongoing initiatives to promote cross-border cooperation on multi-jurisdictional insolvencies, modernization of national insolvency and secured transactions laws, and development of principles for out-of-court corporate workouts.1 The principles draw on common themes and policy choices of those initiatives and on the views of staff, insolvency experts and participants in regional workshops sponsored by the Bank and its partner organizations.2 The consultative process on the Prin-ciples and Guidelines has been among the most extensive of its kind, involving more than 70 international experts as members of the Bank's Task Force and working groups, and with regional participation by more than 700 public and private sector specialists from approximately 75 mostly developing countries. The Bank also included papers and consultative drafts on its website to obtain feedback from the international community.3

Role of Insolvency and Creditor Rights Systems
  1. There are two dimensions to the global financial system. On the one hand, national financial systems operate autonomously and respond to domestic needs. On the other, national systems are tied to and interact daily with the systems of their trading partners. Insolvency and creditor rights systems lie at the juncture of this duality.

  2. The country dimension. National systems depend on a range of structural, institutional, social and human foundations to make a modern market economy work. There are as many combinations of these variables as there are countries, though regional similarities have created common customs and legal traditions. The principles espoused in the report embody several underlying propositions:

    - Effective systems respond to national needs and problems. As such, these systems must be rooted in the country's broader cultural, economic, legal and social context.

    - Transparency, accountability and predictability are fundamental to sound credit relationships. Capital and credit, in their myriad forms, are the lifeblood of modem commerce. Investment and availability of credit are predicated on both perceptions and the reality of risks. Competition in credit delivery is handicapped by lack of

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    access to accurate information on credit risk and by unpredictable legal mechanisms for debt enforcement.

    - Legal and institutional mechanisms must align incentives and disincentives across a broad spectrum of market-based systems-commercial, corporate, financial and social. This calls for an integrated approach to reform, taking into account a wide range of laws and policies in the design of insolvency and creditor rights systems.

  3. The international dimension. New methods of commerce, communication and technology are constantly reshaping national markets and redefining notions of property rights. Businesses routinely transcend national boundaries and have access to new types of credit. Credit and investment risks are measured by complex formulas, and capital moves from one market to the next at the tap of a computer key. Capital flows are driven by public perceptions arid investor confidence in local markets. Effective insolvency and creditor rights systems play an important role in creating and maintaining the confidence of both domestic and foreign investors.

The Principles
  1. The Principles and Guidelines emphasize contextual, integrated solutions and the policy choices involved in developing those solutions.4 The principles are a distillation of international best practice in the design of insolvency and creditor rights systems. Adapting international best practices to the realities of developing countries, however, requires an understanding of the market environments in which these sys-terns operate. The challenges include weak or unclear social protection mechanisms, weak financial institutions and capital markets, ineffective corporate governance and uncompetitive businesses, and ineffective laws and institutions. These obstacles pose enormous challenges to the adoption of systems that address the needs of developing countries while keeping pace with global trends and international best practices. The application of the principles in this paper at.the country level will be influenced by domestic policy choices and by the comparative strengths (or weaknesses) of laws and institutions.

  2. The Principles and Guidelines highlights the relationship between the cost and flow of credit (including secured credit) and the laws and institutions that recognize and enforce credit agreements (sections 1 and 2). It also outlines key features and policy choices relating to the legal framework for corporate insolvency and the informal framework for consensual debt workouts (section 3), which must be implemented within sound institutional and regulatory frameworks (section 4). The principles have broader application beyond creditor rights and corporate insolvency regimes, as well. The ability of financial institutions to adopt effective credit practices to resolve or liquidate non-performing loans depends on having reliable and predictable legal mechanisms that provide a means for more accurately pricing recovery and enforcement costs. Where non-performing assets or other factors jeopardize the viability of a bank, or where economic conditions create systemic crises, these conditions raise issues that deserve special consideration. Annexes I and II to the Principles and Guidelines contain a discussion of issues relevant to bank exit and restructuring strategies and management of systemic financial crises, areas in which the Bank will continue to collaborate with the Fund and the international community to develop principles.

    Following is brief summary of the key elements of the Principles and Guidelines:

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  3. Role of enforcement systems. A modern, credit-based economy requires predictable, transparent and affordable enforcement of both unsecured and secured credit claims by efficient mechanisms outside of insolvency, as well as a sound insolvency system. These systems must be designed to work in harmony...

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