The participants of this Business Breakfast will discuss the effectiveness of insolvency proceedings from the lawmaking and law enforcement practice perspectives, including the administration of pro-debtor and pro-creditor policies in legal regulation.

In reference to insolvency proceedings, most analysts tend to use such adjectives as “ineffective,” “liquidation-minded,” and so on. Then they propose one or a couple of new instruments purported to improve the effectiveness. What are the chances of such isolated legislative improvements yielding any real upgrade of the effectiveness of insolvency proceedings?

But how does one evaluate the effectiveness of insolvency proceedings, anyway? What must such evaluation include? What criteria may be applicable? Should there be a set of universal criteria equally applied to all debtor categories? Or does the concept of effectiveness take on different meanings with different categories of debtors?

The insolvency legislation is a living, rapidly evolving system of laws. Changes in insolvency law reflect global economic trends. Insolvency law is to a great extent about the guarantees available to lenders and borrowers. It is the civilized way to resolve serious controversies that may arise between lenders and borrowers. Therefore, a change in insolvency law can be a powerful factor underpinning the stability of civil commerce. The degree of balance in the national insolvency legislation defines the investment climate in the economy.

Shaped by domestic economic processes, the evolution of insolvency law is at the same time subject to the international standards being developed to regulate insolvency. The work of the UNCITRAL Working Groups on insolvency serves as a model of how these standards are developed.

It would be interesting to illuminate which promising insolvency law improvement guidelines are currently on the table, which nations are reforming their insolvency law, and what kinds of changes are viewed as more progressive.

Developer insolvency no longer spells doom for the investors, like it used to. Although the number of fraudulent housing developers out there is on the rise, and so necessarily is the number of cheated investors, there exist notable positive trends in the advocacy of investors’ rights.

On the one hand, the housing development business becomes more transparent. The background of market players can be checked before the prospective investor makes a choice of developer. On the other hand, the pertinent legal and regulatory framework continues to gradually improve, offering better legal security to private investors. One piece of legislation that has instrumentally contributed to better investor security is the 210-FZ of 12 July 2011, which amends the Federal Insolvency (Bankruptcy) Act with certain fine points about developer insolvency.

What financial risks do investors face in the event of developer insolvency? If the law is meticulously followed, and absent premeditated fraud on the part of the developer, the probability of seeing either your investment money back, or a deed to the home of your choice is fairly high.

The institution of subsidiary liability, as an indemnification vehicle that is supposed to work in favour of the creditors in an insolvency process, has not been applied with sufficient effectiveness. Indeed, statistics indicate that creditors seen no debt repayment in 70% of completed insolvency proceedings. In essence, the enforcement of subsidiary liability is reduced to obtaining a favourable, albeit often unenforceable when it comes to the actual indemnification, court determination to hold the debtor’s formal chief officer liable, followed by the unredeemed debt being written off the books.

Why is this institution not applied effectively? How do you identify the real party liable, the beneficiary of the business earnings and/or the beneficiary of a divestiture of assets or undertaking, and thus take the insolvency proceedings to a place where the debt can actually be recovered? How do you prove malfeasance by the proprietors and/or executives of a business entity?

How does subsidiary liability work in foreign jurisdictions? This session will focus on the latest changes in the enforcement of subsidiary liability and the role of international collaboration in the identification and exposure of the true beneficiaries with a view to holding them liable.

The world economic crisis and the sanctions with regard to the RF have resulted in a sustained crisis in Russian economy. This has entailed sharp increase of insolvent companies.

According to statistics, a great number of insolvent companies, unfortunately, get into the bankruptcy procedure and are then liquidated. The procedures of asset restructuring aimed at restoring the solvency are quite seldom applied due to the low corporate culture and lack of liquidity of the bank system. As a consequence, there are a lot of “offended” creditors, which, in its turn, results in growth of conflicts evolving into the plane of criminal legal relations.

Today at the time of intensive development of civil and administrative legislation on bankruptcy the criminal legislation of the RF undergoes no substantial changes, which results in practical impossibility to apply special norms of the Criminal Code of the RF regulating relations in bankruptcy of entities. As a result, investigative agencies apply the general norms of the Criminal Code of the RF within the frames of economic crimes, which results in unfounded prosecution of representatives of business and protraction of bankruptcy procedures. As a result, the assets of insolvent companies “get hanged up” and are not involved in the economic turnover of the RF for a long time, which causes considerable damage to Russian economy.

The task of a national legislator is to strive to improve the criminal legislation of the RF, to bring it closer to the real economic situation in the society, which is certain to have a positive impact on the corporate culture of business in the RF.

The major issues to be covered:

• Deliberate bankruptcy in Russian law: fiction or reality? Correlation between civil and criminal legislation of the RF;
• Trends in the Russian criminal law with regard to prosecution of special subjects of relations (insolvency receiver, electronic trading facility) within the frames of the insolvency (bankruptcy) procedure;
• Practical criminal legal specific features of bankruptcy of large companies as a toolo in the hands of large Russian banks (exemplified by a case);
• Major areas of development of the criminal legislation of the RF in the light of intensive improvement of the civil legislation in the insolvency (bankruptcy) sphere;
• Specific features of regulation of criminal bankruptcy in advanced economies of other countries.

The declaration of personal insolvency is a widespread method to settle personal debts, practiced world-over. Personal insolvency is handled differently from country to country, but the point is always the same: to rid the individual of their debt burden and re-launch their financial affairs with a clean slate. This settlement vehicle benefits the debtor and the creditor alike. Personal bankruptcy is organized so as to heed the interests of all creditors while granting no seniority to any particular debts or lenders.

The vehicle of personal insolvency furthermore protects the debtor from illegal acts on the part of the lender’s agents, the so-called collectors, who may be inclined to bullying and may occasionally act outside the law. In many countries, the business of debt collection is subject to a dedicated corpus of regulations.

What are the bedrock regulatory principles on personal insolvency and debt collection, country to country? How has the new Russian debt collection law been doing on the ground? How has the practice of personal insolvency fared so far?

The modern world is characterized by the broad geography of economic operations and the dominance of transnational and cross-regional business entities. The build-up of international economic and commercial ties comes to a point where it is no longer possible to play by the national rule-book alone. This concerns most of all aspects of economic activity, and insolvency is no exception.

Cross-border insolvency is a topic that continues to gain relevance. This is confirmed, for instance, by the fact that an authority such as UNCITRAL has made cross-border insolvency a top priority topic in its work. Senior level UNCITRAL administrators have been invited to attend the forum, and their presence promises to make the cross-border insolvency debate more lively, productive and illuminating.

The plan is for the session to elicit where the international community currently is in its advancement of the framework principles of cross-border insolvency, review the international enforcement practice of cross-border insolvency clauses, identify the most controversial points in the settlement of cross-border insolvency issues, and assess the positive effects in those countries which do enforce the universally recognized cross-border insolvency principles.

The modern world is characterized by the broad geography of economic operations and the dominance of transnational and cross-regional business entities. The build-up of international economic and commercial ties comes to a point where it is no longer possible to play by the national rule-book alone. This concerns most of all aspects of economic activity, and insolvency is no exception.

Cross-border insolvency is a topic that continues to gain relevance. This is confirmed, for instance, by the fact that an authority such as UNCITRAL has made cross-border insolvency a top priority topic in its work. Senior level UNCITRAL administrators have been invited to attend the forum, and their presence promises to make the cross-border insolvency debate more lively, productive and illuminating.

The plan is for the session to elicit where the international community currently is in its advancement of the framework principles of cross-border insolvency, review the international enforcement practice of cross-border insolvency clauses, identify the most controversial points in the settlement of cross-border insolvency issues, and assess the positive effects in those countries which do enforce the universally recognized cross-border insolvency principles

The importance of information disclosure is very high and growing in today’s world. The protection of lenders’ rights is the primary concern in this. Indeed, it is absolutely essential for lenders to have standby access to fully updated pertinent information, any change in which may entail legal implications for the lender. One of the key aspects of information access is the maintenance of security interest registries, which are logs wherein the data is recorded pertaining to pledges and their functional equivalents, as well as the details of leases, retention of property title, and other information carrying legal implications for third parties.

Registries of security interests are generated and used in many economies. UNCITRAL has developed a set of standards for the keeping of these registries, derived from best international practice in the field. The application of these standards would substantially enhance the protection of the rights of lenders and other parties to civil commerce.

It is difficult to overestimate the criticality of disclosure of these particular kinds of information, especially when insolvency proceedings are ongoing against a debtor. What specific types of information should be subject to disclosure, and how the registries should be organized for such information, are two of the questions to be answered by this session.

Prior to the global financial crisis of 2008-2009, the widespread take on the insolvency of financial players (banks, insurers, financial market infrastructure providers, etc.) was to let their bankruptcy proceed to winding-up, if the organization showed signs of insolvency (bankruptcy). The proper procedures had to come into play as early as feasible, so as to assure the maximum satisfaction of creditors’ claims, and secure the insolvency proceedings as such. The need was generally recognized to put the safeguards in place to protect the investors (both individuals and, in many economies, also legal entities) and, in some cases, also to protect other retail consumers of financial services, e.g., retail investors, insurance sponsors, etc.

The global financial crisis of 2008-2009 ushered in a new perspective on the issue of the insolvency of financial players (most notably, the major financial institutions critical to system continuity), and compelled the parties concerned to look for new ways to settle the insolvency of such entities. Some of the settlement instruments offered by the international community have found their way into Russian legislation and the practices of the Bank of Russia and the Investment Insurance Agency. However, what is urgently needed is a more comprehensive take on the insolvency settlement of all financial players, wherein special guidelines shall be provided in respect of banks, insurance companies, non-government pension funds, and system-critical financial institutions. This task is a priority that must be addressed in the nearest term.

The plan is to discuss the following at the roundtable:

• Treatment of the settlement of financial organization insolvency in Russian and international practice.
• The trade-off of priorities – financial recovery or winding-up? – as applied to financial entities such as banks and insurance companies.
• Challenges presented by the application of bail-in instruments in Russian and international practice.
• Russia’s latest legislative novelties in the insolvency settlement administration of banks and insurance companies.
• The role of public institutions in the process of the insolvency/bankruptcy settlement administration of financial entities.

Enforcement of workers’ rights is the most acute issue in a bankruptcy. Workers are a driving force of a company. They are interested in preserving the business like no one else. Yet they are most vulnerable to financial difficulties of the company, more than other creditors, because often a worker’s salary is the only source of income for his or her family.

The problem of non-payment of salaries by a bankrupt company differs from country to country. Somewhere it is a very common and complicated problem because it directly depends on economic situation in the country and activity of the workers themselves due to traditional relations between workers and employers. In other countries the problems of salary non-payment are less acute in particular due to the efforts of various workers’ associations defending the workers’ rights and hardline stance of public authorities immediately reacting to non-payment of salary. Yet like bankruptcy itself, salary arrears still actually happen. And this means that the topic of workers’ right protection in bankruptcy is relevant for all the states in the world.

There are some international instruments aimed at protecting the workers’ rights (for instance, conventions and recommendations of the International Labour Organization). National legislations also include special norms dedicated to ensuring the workers’ demands. Establishment of a preferential debts regime for salary arrears and special guarantee institutions are main wage security tools in bankruptcy.

The session dedicated to the protection of workers’ rights in case of employer’s bankruptcy will discuss the mechanisms used in various countries to achieve this goal. What is the progress of guarantee funds in the countries where they exist? What are the primary recent achievements in guaranteeing the workers’ right in bankruptcy?

The discussion will gravitate around the question of what is better, after all: priority of satisfaction of creditors’ claims or a guarantee institution?