postings by Jason Kilborn

Human Rights Watch on Imprisonment for Debt

posted by Jason Kilborn

What happens in countries where no consumer bankruptcy regime exists as a safety valve to assuage the worst consequences of unpayable debt? A report this week from Human Rights Watch ("We Lost Everything": Debt Imprisonment in Jordan) offers one heart-wrenching answer. The following excerpt captures the essence:

Jordan is one of the few countries in the world that still allows debt imprisonment. Failure to repay even small debts is a crime that carries a penalty of up to 90 days in prison per debt, and up to one year for a bounced check; courts routinely sentence people without even holding a hearing. The law does not make an exception for lack of income, or other factors that impede borrowers’ ability to repay, and the debt remains even after serving the sentence. Over a quarter-million Jordanians face complaints of debt delinquency and around 2,630 people, about 16 percent of Jordan’s prison population, were locked up for nonpayment of loans and bounced checks in 2019.

The response from the Jordanian Ministry of Justice is well worth reading, and it concludes by offering some hope: "A committee is reviewing the Execution Law in such a way to ensure justice and account for the interests of both parties (borrower and creditor)." Let us hope that this review concludes as it has in many, many countries around the world in recent years--with a proposal for the adoption of a personal bankruptcy law, following the guidance of the World Bank and other international organizations.

Book Recommendation: Caesars Palace Coup

posted by Jason Kilborn

A fun new book applies a revealing Law & Order analysis to the multi-billion-dollar, knock-down-drag-out reorganization of Caesar's Palace. In The Caesars Palace Coup, Financial Times editor, Sujeet Indap, and Fitch news team leader, Max Frumes, open with a detailed examination of the personalities and transactions that preceded the Caesars bankruptcy case, leading to the second (and, for me, more interesting) part of the book, tracking step-by-step the harrowing negotiations, court proceedings, and examiner report that led to the ultimate reorganization.

There is so much to like in this book. Its primary strength is its Law & Order backstory, peeling back the onion of every major player, revealing how they got to where they were in their careers in big business management, high finance, or law, and revealing their thoughts and motivations as the deals and legal maneuvers played out. Four years of painstaking personal interviews have paid off handsomely in this fascinating account of the inner workings of big money and big law reorganization practice. On a personal note, I was treated to a bit of nostalgia, as the book opens with and later features Jim Millstein, an absolute gem of a person who taught me about EBITDA when my path fortunately crossed with his at Cleary Gottlieb in New York City in the late 1990s. It also features the Chicago bankruptcy court in my backyard, which seldom hosts such mega cases as Caesars', and the story in the second half of this book reveals part of the reason why. Cameo appearances include some of my favorite academics, such as Nancy Rapoport, as fee examiner, and Slipster, Adam Levitin, as defender of the Trust Indenture Act. On that latter point, the book alludes to (but does not particularly carefully explain) the key role of the Marblegate rulings on the TIA, which is described in a bit more depth in a vintage Credit Slips post. Again, the book's most valuable contribution is a behind-the-scenes look at the motivations and machinations behind a salient instance of collateral stripping, adding to the literature on this (disturbing) trend.

For would-be, currently-are, or has-been (like me) business managers, investment bankers, hedge fund managers, and reorganization lawyers, this book is a fascinating under-the-hood analysis of every stage of a financial business restructuring (not much about the operational side). For anyone interested in the thoughts and motivations of the Masters of the Universe who control so much of our world and its most famous companies, this book offers a brutally honest peek at how the sausage is made. It's not always pretty, but it is both entertaining and enlightening.

Personal Bankruptcy Arrives in China in March 2021

posted by Jason Kilborn

The process I noted in an earlier post has come to fruition, and the Shenzhen special economic zone will introduce the first personal bankruptcy law in China, effective March 1, 2021. It will apply to a quite limited number of people (a total of about 12.5 million residents in Shenzhen three years ago, as of 2017, and one must have been a Shenzhen resident for three years to qualify for the new bankruptcy procedure), though by people, I mean real people, as it is not restricted to merchants or even business-related debts. This is a really powerful and bold step forward, and many have expressed concern about the payment-morality effects of such a liberal procedure for escaping from one's debts (the common phrase "lao lai" 老赖 means "debt dodger" or someone who evades responsibility).

That's why a discovery in the final text of the new law really struck me today. I was comparing the language from an early 2015 draft, the June 2020 draft, and the final version, adopted on August 26, 2020. The new word for "discharge" used for years in the earlier drafts was "mian ze" (免责), loosely, "free/excuse from responsibility." But between June and August, that term was replaced in over a dozen instances by a slightly different term, "mian chu" (免除), again loosely, "exemption/remission." In the couplet forming this new term, the character for "responsibility/duty" (ze 责) was replaced by a much less morally laden character carrying the meaning "get rid of, remove" (chu 除), which is more or less redundant with the meaning of the common first character (mian 免, excuse/waive). Neutralizing the concept of a discharge of debt to remove connotations of excusing someone from duty and replacing this with a sterile, redundant notion of simply removing (technical) liability struck me as an interesting rhetorical move.

I don't know if any ordinary Chinese person would perceive a difference here, but the US played this rhetorical game in the Bankruptcy Code by replacing the judgmental term "bankrupt" with the neutral term "debtor." This latest move to re-coin the new Chinese word for discharge seems to me to follow along those same lines. [Incidentally, I checked the Enterprise Bankruptcy Law, and neither term figures prominently in that law, which doesn't confer any discharge at all, so the Shenzhen authorities had to come up with a more or less new term.]

If you have a better sense of the potential emotional/rhetorical impact of this change, let me know what you think (I'm probably making too much of it, but it was an interesting twist).

New Greek Bankruptcy Code

posted by Jason Kilborn

Responding to an EU Directive and what was likely already a long-simmering plan to revise a not entirely satisfactory patchwork of constantly shifting bankruptcy and insolvency laws, the Greek government recently released a draft of a new Code for Debt Settlement and Second Chance. A webinar earlier this week hosted by Capital Link offered a rare insight into this developing legislation, introduced by the architects of the new law. If all goes as planned in the legislature, the new Code will become effective in 2021. Watch for much more of this type of activity in other European countries in the months ahead.

Personal Bankruptcy Coming to China

posted by Jason Kilborn

The English-language press has discovered a long-gestating project to introduce personal bankruptcy law in China. The project is described as "China's first personal bankruptcy law," though it remains just a draft for now, and it is strictly limited to longtime residents of Shenzhen, in the special economic zone just north of Hong Kong. If it's a success, something like this law may be rolled out across the country, as the CCP Central Committee (meeting at the 3rd session of the 13th National People's Congress a few weeks ago) explicitly announced its intention to "promote individual bankruptcy legislation" (see item 8, first paragraph). As far as the suggestion that this has been prompted in any sense by the COVID-19 pandemic, lawyers in Shenzhen have been working on this project since at least 2014, and they released a book-length discussion of this project in 2016. And as far as the characterization of this being "the first" such draft law, another extremely thoughtful and impressive draft law was released a few weeks ago by a group of bankruptcy scholars associated with the Research Center for Personal Bankruptcy Law of Beijing Foreign Studies University (coordinated by the amazingly energetic and dedicated Prof. Liu Jing). Meanwhile, courts in several southern coastal cities have been undertaking their own experiments with dealing with debt collection cases involving insolvent debtors. So ... BIG things have been underway in China on this topic for some time now. Stay tuned for more details on these interesting developments (I'm working on a couple of articles on developments in small business bankruptcy in the Arab world and in China this summer and fall ...).

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