SECTION 10 - INFORMAL WORKOUTS IN THE RETA ECONOMIES

10.1 Introduction

As mentioned earlier in this report, the commercial culture of many of the RETA economies appears to be more conditioned toward non-confrontational dispute resolution by negotiation and mediation and not the employment of strict legal processes. This suggests that there may be a relatively firm basis upon which to promote and build the elements that are necessary to structure an informal negotiated approach to the problem of an insolvent or financially troubled corporate debtor.

An outline was given earlier of what is meant by and involved in the informal approach known as the informal "work-out". It is now appropriate to consider the development of this process in the RETA economies.

10.2 Development of the informal work-out

Initiatives to promote the concept of the informal work-out have been taken in a number of the RETA economies. They are:

• Indonesia: the endeavor is known as the "Jakarta initiative";
• Thailand: something similar is popularly known as the "Bangkok Rules" (the more formal title is Framework for Corporate Debt Restructuring in Thailand);
• Malaysia: the approach to the informal work-out is titled the "Corporate Debt Restructuring Committee Framework (CDRC)"; ¡¤ Korea: the initiative is called the "Financial Institution Agreement for Promotion of Company Restructuring";
• Hong Kong, China has the Guidelines on Corporate Difficulties; and
• Singapore

  These initiatives are important and deserve appropriate recognition, response and support.

  They are all largely modeled on the informal work-out technique developed in the USA and in England. Because most are of very recent origin, it is too early to determine their level of acceptance and application or whether there have been any confirmed positive results. In Hong Kong, China however, there has been some successful results from the informal process (see the Hong Kong, China local study).

10.3 Consideration of work-out models

The Hong Kong, China and Singapore guidelines are largely based on the "London approach" and should not need any detailed analysis. They are essentially non-intrusive, voluntary and non-prescriptive. The basic framework was outlined in Section 3.

The initiatives of the other four RETA economies are of more comparative interest.

The Indonesian, Malaysian and Korean approaches each provide for a facilitating agency to assist the process.

In Indonesia this is the Jakarta Initiative Task Force, appointed by the President. Its principal functions are to facilitate negotiations; refer cases of "public interest" to the courts under the insolvency law; and to provide a central reference point for obtaining necessary government and other approvals to implement plans of restructure. Under this agency is an Advisory Committee whose functions include review of the workings of the informal process and making proposals for improvement and "new approaches and actions." However, neither the Task Force nor the Advisory Committee may "dictate the terms of a restructuring plan". Otherwise the Jakarta Initiative largely follows the "London approach" in process and methodology.

In Malaysia the facilitator is a Steering Committee which "convenes meetings between debtors and creditors to consider debt restructuring". The Steering Committee is also required to ensure that deadlines are met, mediate in disputes, expedite approvals, provide guidance in the selection of appropriate consultants and generally to assist in each case of informal rescue. A permanent administrative Secretariat has been established by the central bank, Bank Negara Malaysia. Its function is to provide administrative and other support to the Steering Committee. It receives applications for the implementation of the process. An outside professional adviser has also been appointed to "assist in formulating guidelines in the operations of CDRC and also to conduct a series of workshops and seminars to increase the level of public awareness".

Korea has established an "Administrative Committee" under its informal process. In turn it has appointed a "Company Restructuring Committee" to act as facilitator. However, the Korean approach differs quite markedly from the other RETA economies. The Korean informal scheme operates on the basis of an agreement between "Creditor Financial Institutions" who have chosen to be bound by the agreement. In effect, a case of possible corporate restructure would involve a corporate debtor of one of these institutions. That institution may invoke the informal process amongst the other institutions in respect of that corporate debtor. Once that occurs a stay or suspension of actions against the corporate debtor by any of the other institutions who are party to the agreement takes effect, by force of the agreement. The Korean approach is thus more in the nature of a formal agreement between certain banks to work toward the possibility of a restructure. It differs quite considerably from the voluntary informal approach in other jurisdictions.

The approach in Thailand is, again, different. Although it does not provide for a "facilitator", it appears more heavily "regulated". For example, the framework says that: "Any non-traditional restructuring approach such as debt forgiveness should only be considered as a last resort. To the extent that debt forgiveness is requested, it must be compensated in some manner such as stock and warrants". One might suspect that this type of intervention in a process of negotiation is dictated by a desire to maintain the balance sheets of banks.

10.4 Possible barriers to informal work-outs

Some of these proposals have also been the subject of some criticism and doubt about their acceptance and application in some of the RETA economies. It is appropriate to consider the possible barriers to the acceptance and adoption of the informal work-out approach and what might be done to overcome those barriers.

Reactions to the informal process

The local consultants were asked generally about the work-out process and provided with a copy of the "Jakarta Initiative". They were asked to assess the practical implementation of the informal work-out in their respective economies and comment upon strengths and weaknesses of this approach. The response was favourable to the concept of the work-out, but a number of constructive problem areas were raised.

The following is a summary of the responses:

• Japan: Some concern was expressed about the extent of knowledge and experience in Japan of sophisticated refinancing and other like techniques. "In Japan there is a problem as to how companies find advisors who are experienced in corporate and debt restructuring." Also the concept of subordination is not known in Japan. Finally, it may be difficult to protect a financier who was willing to provide "new money".
• Taipei,China: Here it was considered that the formal composition proceedings under the Bankruptcy Law came closest to the concept of the informal work-out but the problem was that secured creditors, for example, were not restrained under that law. There was also little involvement of professional advisors and experts to assist in a restructure. It is also thought that the idea of having a government agency to assist the informal focus would be an advantage.
• Korea: The government of Korea favours the informal work-out approach (and has, accordingly, encouraged adoption of the Company Reorganisation Agreement) because, in part, it can help to preserve a debtor corporation and employment and assist creditor financiers. Problems are encountered, however, regarding professional advisors and experts (because of some concern over their potential or possible liability); in the speed of the process (it is considered to be slow); and, the "conservative" position adopted by banks in negotiating debt restructuring (as a result of the effect of the economic crisis on the banks themselves).
• Malaysia: Concern was expressed about a work-out which involved all creditors. It is suggested that the work-out is more practical and manageable if it is confirmed to financial institution creditors only and, in particular, if such financial institutions are under central bank supervision. These comments seem to reflect the framework of the Corporate Debt Restructuring Committee which is "sponsored" and, in part, administered by a secretariat attached to the central bank.
• Indonesia: It is doubted that the present insolvency law, in practice, provides an effective sanction to encourage resort to the work-out. The effects of the economic crisis have also limited any real attempt at refinancing or restructuring because of the fact that:

  many debts are denominated in foreign currencies and the devaluation of local currency means that there are simply "insufficient rupiah earnings to generate the necessary U.S.$ to service debt"; and

  the banking sector collapsed and "a new government appointed management has been placed in control of many Indonesian banks. This makes negotiations more difficult because the lenders' management now has different interests in dealing with debtors".

  There is a need for government assistance in the negotiation process which is provided for under the Jakarta Initiative process.

• Philippines: Doubts were raised whether the sanction of the possible application of insolvency law in the Philippines processes is sufficient.
• Pakistan: It is considered that the employment of specialist advisors would be difficult and the threat of a sanction under the existing insolvency law of Pakistan may not be very effective.
• India: "The law requires to be strengthened in relation to swift and effective resort to the application of an insolvency law and the sanction of the break down of a negotiation process for ensuring financial viability.... The process for presenting a negotiation scheme has to be made the burden of a company or creditor ¡­. rather than that of an operating agency".
• Thailand: There is a legal problem with the protection of new money. There is also a problem regarding the appointment of specialist advisors and the costs associated with that. Another difficulty in Thailand concerns the provision of information and breach of confidentiality agreements.

  The main points of those collective opinions may, perhaps, be summarised as follows:

• concern about the availability of experienced work-out personnel and advisors;
• concern about the willingness of both debtor corporations and banks to engage advisors;
• concern (in a few jurisdictions) that the insolvency law, in practice, provides an insufficient sanction to encourage the informal approach;
• concern that informal work-out initiatives have been launched at a time when, because of the effects of the economic crisis, the conditions for their successful promotion are difficult;
• agreement that some type of government or quasi-government facilitating agency is required;
• concern regarding the provision of on going funding (or "new money").

From those observations there appear to be three main barriers. The first concerns, among other things, "know how", experience and commercial knowledge. The second concerns the practical problem of providing for the immediate cash flow needs of an insolvent corporation (the problem of "new money"). The third barrier concerns the level of sanction that might both promote and encourage an informal work-out.

(a) Experience and commercial knowledge

It took a considerable period of time for the concept of the informal work-out to be accepted in more fully developed countries. In part, this was because a change in attitude was required, in particular a change from relying only on the employment of strict legal processes. But it only became successful after a considerable period of knowledge and expertise had developed. In the RETA economies there should not be so much difficulty in inducing a change in attitude since, as has been mentioned, in many of the RETA economies there exists already a preference to avoid the employment of strict legal processes. But one suspects that, at least in some of the RETA economies, there is a need for considerable training and education in the manner in which the informal process may be properly conducted.

A successful work-out also involves a considerable degree of commercial experience and knowledge in a number of complex areas (for example, the restructuring of the financial obligations of a corporate debtor; the possible sale of some of the non core business activities of the debtor corporation (which often involves dealing with creditors who have security over assets comprised in those business activities), the possible conversion of some debt into equity (which would necessarily involve a reduction or watering down of existing equity); and other complexities that might extend to inter party agreements between some of the creditors themselves). It is possibly the case that the degree of domestic experience, knowledge and expertise in some of the RETA economies is not presently sufficient to enable those complexities to be fully understood and dealt with. There is probably, therefore, a need for training and education in this area.

(b) The problem of "new money"

As mentioned previously, some of the insolvency law regimes (and, possibly, other laws) of some of the RETA economies may have to be altered to provide for the protection of creditors who are willing to provide urgent cash flow funding for a debtor corporation in an informal work-out (see the section dealing with formal rescue regimes).

(c) The level of sanction

As mentioned in the earlier section in which the concept of the work-out was examined, it is a fact that despite the overall appeal and commercial sense that an informal work-out might suggest, the prospect of engaging a corporate debtor and its variety of creditors in such a process may not work unless there is an available sanction in the form of quick and efficient access to the employment of a formal insolvency process. As observed in earlier sections of this report, that sanction is not present in some of the RETA economies.

3. If necessary, insolvency laws providing for rescue should be amended to enable proposals developed as a result of the informal process to be referred to a relevant court or tribunal for the purpose of seeking approval from creditors and the sanction of the court or tribunal in accordance with the provisions for such approval and sanction as contained in the relevant insolvency law.

4. An insolvency law regime should provide for the protection of "new money" in order to encourage and enhance the prospect of a successful informal work-out (and formal rescue).

5. To encourage and facilitate the development of informal work-out processes, an insolvency law regime should provide convenient and quick access to its procedures.