postings by Jason Kilborn

New Saudi Bankruptcy Law ... A Boon for SMEs?!

posted by Jason Kilborn

Saudi Arabia's King Salman has approved a new bankruptcy law. {Download Saudi BK final 2-2018} Commentators have heralded this new law as a boost to economic reforms, in particular to the SME sector, but I have some serious doubts about this. A member of the Shura Council, the King's advisory body, is quoted in one report as explaining "[t]he idea is to simplify and institutionalise the process of going out of business so new organisations can come in." That latter part--new businesses coming in--requires individual entrepreneurs, either the one whose business just failed or new ones, to embrace the major risks of starting a new venture. In either event, a crucial aspect of an effective SME insolvency law, and I would argue THE most crucial aspect, is a fresh start for the failed entrepreneur (and a promise of such a fresh start for potential entrepreneurs). This fresh start is promised and delivered most effectively by provision conferring a discharge of unpaid debt. The new Saudi law all but lacks this key provision. Article 125 on the bottom of page 50 is quite clear about this: "The debtor's liability is not discharged ... for remaining debts other than by a special or general release from the creditors." It seems highly unlikely to me that creditors will offer such releases with any frequency. Yes, the new law provides a useful framework for negotiating restructuring plans, and the Kingdom deserves praise and respect for finally adopting such a measure. But the lack of a law- imposed discharge following liquidation when creditors are not willing to agree is not a foundation for a thriving SME recovery (though I understand and respect the reason why the Saudi law lacks an imposed discharge). Most SMEs are not enterprises--they are entrepreneurs; they are people, not businesses. Leaving these people to bear the continuing burden of unpaid debt does not, in my mind, reinvigorate failed entrepreneurship or entice others to join the movement. I'm afraid the effects on the SME sector of this law will be muted at best. I hope I'm wrong. 

Jayfest and Bankruptcy Cases in the Supreme Court

posted by Jason Kilborn

Most of us Credit Slipsters enjoyed an absolutely fabulous symposium over the weekend celebrating the illustrious career of one of our own, Jay Westbrook. The Texas Law Review will publish a selection of several of the papers presented at the symposium (and TLR editors pulled off an amazing feat of organization in coordinating the travel and other logistics for this major event--kudos to them). All of the presentations were cutting-edge and extremely impressive, and many are available on the SSRN profiles of the authors listed in the symposium program. I want to highlight just one that I thought would be of particularly broad interest to Credit Slips readers.

The always impressive Ronald Mann described his recently released book, Bankruptcy and the U.S. Supreme Court. In his characteristically insightful and probing way, Mann looks into the private papers of the Justices for evidence of how and why they decide bankruptcy cases as they do. In his fascinating presentation at the symposium, he challenged conventional explanations of why the Court has construed the law to provide generally narrow relief (not only because of their boredom with the subject matter and/or a supposed adherence to narrow construction of statutory language) and offered provocative explanations based on, among other things, the presence (or absence) of a federal agency to advance a case for broader relief. The introduction of this new book immediately brought to my mind another recent and impressive analysis of Supreme Court bankruptcy jurisprudence, Ken Klee's Bankruptcy and the Supreme Court: 1801-2014. But Mann's latest contribution really seems to add something valuable, illuminating, and entertaining. Readers of this great new book will not find themselves, as Mann described one Justice's reaction to an oral argument, "in sleepy distress." Check it out, and watch for what will be a value-packed Texas Law Review symposium issue.

Comparative Insolvency Conferences of Note

posted by Jason Kilborn

I thought Credit Slips readers might be interested in using some holiday down-time to catch up on a couple of recent comparative insolvency conferences with particularly cutting-edge presentations, some of which are or will be available for viewing online (and many of the papers are available on SSRN or elsewhere).

First, on Nov. 23-24, the Notary College of Madrid offered its spectacular hall to host an international conference on consumer credit information privacy and regulation (day one) and the treatment of insolvency for SMEs and consumers (day two). The second day offered a particularly interesting presentation by one of the leaders of the EU Commission's initiative for a Directive on harmonization of European laws on preventive restructuring and second chance discharge relief (followed by a bit of constructively critical commentary by an American who fancies he knows something about European personal insolvency). Recordings of the entire conference were just posted to YouTube--most of the recordings are in Spanish, but the EU Directive and critical commentary presentations are in English after a short Spanish intro (nos. 8 and 9 of the 10 recordings). Congratulations to the architects of this fabulous event, who also made impressive presentations: Matilde Cuena Casas (Univ. Complutense de Madrid), Ignacio Tirado Martí (Univ. Autónoma de Madrid), and David Ramos Muñoz (Univ. Carlos III de Madrid).

Second, the following week offered a special, rare treat with the conference, Comparative and Cross-Border Issues in Bankruptcy and Insolvency Law, hosted by the Law Review of the Chicago-Kent College of Law. The line-up of panels on both comparative and cross-border issues was particularly impressive, and we were treated to a keynote by Jay Westbrook refining his latest thinking about cross-border coordination. The conference was live streamed, and the recordings are promised in the near future, but for now, the livestream page still has (scroll down to Day 1) the recoding of Adrian Walters's terrific paper on restrictive English interpretation of the notion of international cooperation. Again congratulations to the organizers of this fabulous event (who, again, gave very impressive presentations of their own): Adrian Walters, Chicago-Kent College of Law, and Christoph Henkel, Mississippi College School of Law.

Merit v. FTI and the Missing Silver Bullet Argument?

posted by Jason Kilborn

On November 6, the Supreme Court will hear arguments in a case only a lawyer--and probably only a commercial or bankruptcy lawyer--could love, Merit Management Group v. FTI Consulting. Simplifying quite a bit, the issue is whether a payment by wire transfer (or presumably a check) is "made by" the bank who implements the funds transfer, or the customer who initiates the transfer. The issue arises from the safe harbor for securities contract-related settlement payments, insulating such transfers from avoidance (clawback) by a bankruptcy trustee, and the question whether a money transfer made by wire from the buyer of stock to the purchaser(s) was "made by or to ... a financial institution." 11 USC § 546(e). Several circuit courts have held the safe harbor applies even if the bank-transferor is a simple conduit, performing nothing more than the ministerial task of moving the money (so to speak) from buyer's account to seller's bank. The 7th Circuit held to the contrary in this case, noting that a letter might be said to be "sent by" either the sender or the Postal Service, but the former interpretation is more sensible and consonant with likely congressional intent in this context (again, vastly simplifying to prevent boring readers to death). 

Ordinarily I would leave it to those smarter than I to blog about these kinds of big-money cases, but after I was asked to write a little squib for the ABA about it, the extremely perceptive Henry Kevane of the famous insolvency firm Pachulski Stang in San Francisco saw my little piece and called me to ask about an argument relevant to the case. Did anyone point out, Henry asked me, that the definition of "financial institution" in section 101(22)(A) includes the bank's customer within the ambit of "financial institution" in cases where the bank is "acting as agent or custodian for a customer ... in connection with a securities contract"? Well, no, no one appears to have made this seemingly dispositive observation! A transferor bank implementing a wire transfer would certainly be acting as the customer's (account holder's) agent, and the whole point of the case is that the payment was made "in connection with a securities contract" (the same language in section 546(e)). If the Bankruptcy Code oddly defines the customer and the bank as both being a "financial institution" in this context, then regardless of who made the payment, it was made "by" and "to" a financial institution, since the same logic would apply on the recipient side, too. Hmmmmmmmm.

Continue reading "Merit v. FTI and the Missing Silver Bullet Argument?" »

A Quiet Revolution in Pension Reform

posted by Jason Kilborn

A historic vote was announced overnight that signals a new era for large pension reform. As is often the case, "reform" here means that ordinary, hard-working folks will suffer a significant amount of pain as big companies are relieved of some liabilities, but the hope is it will be less painful than the alternative. The revolution began in 2014, when Congress adopted the Multiemployer Pension Reform Act (MPRA).  The Pension Benefit Guaranty Corporation guarantees a portion of the benefits due to participants in pension plans that have become insolvent, but as a result, it is also facing a nearly $100 million shortfall in its ability to cover the projected volume of its existing guarantees. Congress attempted to avert disaster by allowing particularly large and especially distressed pension funds to slash benefits themselves in order to maintain solvency. Ordinarily, this extraordinary action would, if possible at all, require an insolvency filing and court oversight of some kind, but the MPRA allows plans who aggregate benefits for many companies (multiemployer plans) to apply to the Treasury Department for administrative permission to abrogate their pension agreements and cut benefits with no court filing or general reorganization proceeding. There are, of course, restrictions on the level of distress required for such a move and the degree of proposed cuts, but the MPRA allows large pension funds to reduce the pension benefits of thousands of beneficiaries with simple administrative approval. The plan participants get a vote on such proposals, but the law builds in a presumption: Treasury-approved cuts go into effect unless a majority of plan beneficiaries votes to reject the cuts.

Continue reading "A Quiet Revolution in Pension Reform" »

Old-Fashioned Insolvency Policy in India

posted by Jason Kilborn

It seems to me a sign of serious regulatory dysfunction when a government expressly uses bankruptcy law as a means of collection, rather than rescue or at least collective redress, with an aim to treating economic stagnation. I've seen several stories recently like this one, touting the new Indian insolvency law and government regulators' strategy of putting pressure on banks to use involuntary insolvency (creditors' petitions) to clean up the NPL problems of a series of major industrial firms. The notion that insolvency law is about collecting NPLs seems at best anachronistic, and likely at least a sign of major dysfunction in other law or policy.

The right way for one lender (including the government tax collector) to collect one defaulted loan is to engage an ordinary collections process (judgment enforcement)--which itself might well result in the sale of the company, as envisioned in the story linked above. Creditor-initiated bankruptcy/insolvency proceedings should be the nuclear option, engaged only when creditors are worried that the debtor's assets will be dissipated by other enforcing creditors before the later-in-time ones can reach the ordinary enforcement stage. Such cases should be rare. The primary users of modern insolvency law should be debtors responding to positive incentives to seek an orderly opportunity for a global renegotiation of their debts, or an orderly way for the governors of those companies to liquidate and redeploy the assets of their companies more effectively--avoiding in the process a protracted battle about their own liabilities as personal guarantors and/or as directors liable for "insolvent trading." 

The subtext of the stories I've seen about the new Indian insolvency law seem to be (1) it does not provide an adequate incentive for debtor-companies to seek either rehabilitation or orderly liquidation when they realize they're in obvious financial distress, (2) the ordinary collections apparatus in India must be totally dysfunctional if banks have no incentive to engage it to deal with their NPLs, (3) the new insolvency law also provides an inadequate incentive for creditors to engage it to seek collective redress, since the government has to put pressure on banks to do so, and (4) all of the work on proper, modern insolvency policy in recent years by UNCITRAL, the IMF and World Bank, and many, many others has been lost on Indian regulators. Especially in developing nations like India and South Africa, the battle over the appropriate, modern role of insolvency law as debtor-initiated rescue or exit, as opposed to old-fashioned creditor-initiated collections, continues to rage.

 

Dana Gas and an Existential Crisis for Islamic Finance

posted by Jason Kilborn

IslamicartThe very foundations of the Islamic finance world were shaken a few weeks ago when Dana Gas declared that $700 million of its Islamic bonds (sukuk) were invalid and obtained a preliminary injunction against creditor enforcement from a court in the UAE emirate of Sharjah. Like Marblegate on steriods, Dana made this announcement as a prelude to an exchange offer, proposing that creditors accept new, compliant bonds with a return less than half that offered by the earlier issuance.

Dana shockingly claimed that evolving standards of Islamic finance had rendered its earlier bonds unlawful under current interpretation of the Islamic prohibition on interest and the techniques Dana had used to issue bonds carrying an interest-like investment return. I had expected to read that Dana had used an aggressive structure like tawarruq (sometimes called commodity murabahah) that pushed the boundaries of what the Islamic finance world generally countenanced, but no. The structure Dana had used was totally mainstream, a partnership structure called mudarabah. Dana asserted that the mudarabah structure had been superseded by other structures, such as a leasing arrangement called ijarah, though in Islamic law as in other legal families, there are often multiple permissible ways of achieving a goal, not just one. And when an issuer prepares an Islamic finance structure like this, it invariably gets a sign-off from a shariah-compliance board of respected Islamic law experts (sometimes several such boards). For Dana Gas to suggest that its earlier board was wrong to the tune of $700 million, or worse yet that Islamic law had somehow changed in a few years through an abrupt alteration of opinion by the world of respected Islamic scholars is ... troubling.

Continue reading "Dana Gas and an Existential Crisis for Islamic Finance" »

Plain Meaning Rolls On in Gorsuch's First [Credit Related] Opinion

posted by Jason Kilborn

It was not at all surprising that, for his first (traditionally unanimous) opinion, in Henson v. Santander, the new Justice Gorsuch took on the relatively simple and low-key issue of the definition of "debt collector" in the Fair Debt Collection Practices Act. It was also not surprising that he hewed quite closely to the approach of his predecessor in basing his decision on the "plain meaning" of the words in the statute, complete with grammatical analysis of past participles and participial adjectives (the example adduced, "burnt toast," might describe how the consumer protection industry will view this latest ruling). The FDCPA is as simple as it appears, the Court confirmed:  if you're collecting a (consumer) debt owed to someone else, then you're a debt collector; if you're collecting on a debt owed to you, for your own account, you're not a debt collector, even if, as in Santander's case, you bought the debt from the original creditor with the intention of collecting it for an arbitrage profit later. The notion that Congress did not foresee the debt buying industry and its explosive growth when it wrote the FDCPA in the 1960s, and it certainly would have wanted to constrain abusive collections practices by debt buyers as much as by debt collectors was ... wait for it ... a matter for the present Congress to clarify. You can almost see Scalia whispering in Gorsuch's (or his clerk's) ear as the opinion is drafted. Well, at least there's something to be said for predictability.

New Museum of Failure

posted by Jason Kilborn

A new Museum of Failure in Sweden stands as a tribute to the notion that failure is just an opportunity for learning, powering growth and future innovation. I thought no group could appreciate that as much as Credit Slips readers. Europe is still in the process of shaking off its ages old stigma with respect to failure, especially in the context of individual entrepreneurialism. It's amazing how difficult real reform of both business and personal insolvency law has been and continues to be there (and elsewhere outside the Anglo-American world). I've long thought that shaking off these hangups, embracing failure, and facilitating fresh innovation are among the core attitudes that have made America great. Three cheers for failure!

New ABI Commission on Consumer Bankruptcy

posted by Jason Kilborn

The American Bankruptcy Institute announced this morning that it has convened a commission to study and propose reforms of the US consumer bankruptcy system. In light of the success of ABI's Chapter 11 commission, we can expect big things from this commission on Chapters 7 and 13. Some major names in consumer bankruptcy are among the 15 members of the commission, and Credit Slips is well represented, with Bob Lawless as Reporter and Katie Porter on the membership roster, along with one more super-prominent academic, professor-cum-judge-cum-professor Bruce Markell, now of Northwestern. I wish the commission had consulted Bob about its name. He would have pointed to his empirical work on small business debtors to suggest that this be called a personal bankruptcy commission, rather than consumer, but perhaps the inclusion of a good deal of small business debtors and business-related debts is taken as a given. Anyway, best wishes to the commission--we'll eagerly await its first reports and calls for comments!

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