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Table of contents
- 1st Edition
- Insolvency law in East Asia - Semantic Scholar
- Insolvency law in East Asia
- Resolving Insolvency
Nonetheless, rights of land use are clear and may be mortgaged under the Land Law of Hong Kong, All allow for a charge to be taken over land, which must be registered. The Malaysian courts will generally recognize a charge that is executed but not yet registered. Movables and Unsecured Property The treatment of secured rights over movable property is still more varied throughout the study group.
Although none of the jurisdictions within this study has adopted a U. Article 9-style regime, the English origin systems of Hong Kong, Malaysia and Singapore work relatively well. However, Table 4 shows that delays and inefficiencies in the enforcement of secured rights are common. Similarly, limits to the movable assets that may be used as collateral is problematic or constraining in most jurisdictions. These include bars to taking security interests in chattel paper or accounts receivable, and more broadly a lack of provisions for charges over future property or the use of security to collateralize future loans.
Laws governing land registration differ between Peninsular and East Malaysia, the latter excluding Labuan, which became a federal territory in upon being designated an offshore financial center. The taking of land and movable assets owned by Labuan companies as collateral is governed largely by the Offshore Companies Act However, enforcement is likely to remain problematic, and the commercial effectiveness of the law may be colored by other current omissions in law.
China73 Mortgages may be taken over existing tangible movable property, but not over future property. Secured creditors must register their claims to protect all such non-possessory rights. They may also protect themselves through possession in the form of a pledge. As with real property, foreign entities seeking security over movable property must comply with SAFE approval and registration procedures. The treatment of security interests in intangible assets such as bank accounts or receivables is less straightforward.
Regulations have been issued allowing mortgages over such assets, but the effectiveness of these new forms of collateral is largely untested. Enforcement of unsecured claims can sometimes run into resistance at a local level; there have been reported instances in which banks and their clients have colluded to hide assets from the court. Indonesia Under the Fiduciary Security Law, a debtor may transfer title in goods to a creditor and retain possession of the goods in the absence of any default.
Pledges are also permitted. A fiduciary assignment may be taken for security purposes over intangible property and receivables. Chattel mortgages must be recorded. Philippine law does not recognize chattel mortgages over future property; but the courts have created exceptions for interests in inventories of raw materials, goods in process, and finished goods.
Future obligations cannot be secured by chattel mortgages. South Korea Rights in personal property may only be protected by possession. South Korean law does not recognize purchase money security interests or floating liens.
See supra note 67, providing at Arts. Such mortgages will take effect only upon registration. Registration is mandatory in each case in order to protect priority. Enforcement is generally procedural and not subject to judicial uncertainty. Thailand Only certain forms of movable property may be mortgaged, including large ships, boats, floating houses, beasts of burden, and classes of machinery. Creditors holding rights of retention are also recognized as secured creditors. Other types of property may be pledged. Enforcement of secured rights requires either a court judgment or a public auction.
Enforcement is slow and costly. Fixed and floating charges are not permitted at present, but would be allowed under draft secured transactions law. The enforcement of unsecured debts in Thailand can extend for many years. Vietnam Private property rights are constitutionally recognized and charges over movables permitted by the civil code.
Further decrees are expected to assist with the implementation of these changes. However, enforcement of security interests remains difficult.
Insolvency law in East Asia - Semantic Scholar
Unless bankruptcy proceedings have been commenced, a court order is not necessary for the enforcement of a secured transaction. Hong Kong The laws in all three jurisdictions provide a variety of security over Malaysia movable property both tangible and intangible , including charges, liens, and pledges. Retention of title is also permitted. Security may be Singapore taken over future property.
Fixed charges may be taken over tangible assets and floating charges may be taken over classes of variable assets such as inventory or book debts. The taking of fixed charges over book debts by secured creditors is much more difficult..
Insolvency law in East Asia
UCC Article 9. Usual practice in these three jurisdictions is for a debenture to provide a secured financial creditor with contractual remedies upon default, allowing appointment of a receiver or special manager. All have efficient debt collection procedures for unsecured creditors. In these three jurisdictions the decision by the U. House of Lords limiting the validity of fixed charges over book debts to cases in which the secured creditor exercises sufficient control over the collateral e.
Spectrum Plus Ltd. Securitization Securitized transactions require a permissive framework of existing or dedicated law, acceptance of certain accounting principles, acceptable regulatory assent, and a non-discriminatory taxation background.
Such restrictions are common in all review markets, except in Hong Kong and Singapore. The details of typical transactions will vary among jurisdictions, but are assumed to entail the irrevocable transfer of assets to an insubstantive special purpose vehicle SPV to which the asset seller has no ties of ownership or control. Funding for the asset purchase is provided by the sale of public or private securities to third party investors. The transaction must withstand any legal claim in bankruptcy against the asset seller; its economics must withstand taxes and duties on transfer; in most cases, securities issued by the SPV must provide for the dependable subordination of claims.
In general, the elements of law typically associated with securitized transactions in advanced markets are present in the three common law review jurisdictions, especially those affecting existing or future claims originated by financial intermediaries. However, certain future claims that cannot be specified in ways required by current law may be seen as hazardous source material by investors or third party monoline insurers, such as credit card receivables. A summary of the provisions for securitized transactions and their effectiveness is given in Table 5.
Its assessments of the effectiveness of enabling legal provisions column 2 , the enforcement of foreclosure or repossession of source assets column 5 , and ongoing threats to the integrity of transfer of assets to a SPV column 6 are in each case based on transactional evidence and appraisals of governing laws.
However, it must be noted that in most jurisdictions, transactional integrity has yet to be fully tested through a complete credit cycle. This would apply in relation to new rules such as the creation of real estate investment trusts in common law jurisdictions such as Hong Kong and Singapore.
Nevertheless, in each case the probability is small that a completed transaction will be successfully challenged. While aspects of law may now be clear in some cases, it may be little used, such as law regarding private contracts in the Philippines or Thailand, and is thus yet untested. Further, no significant number of completed securitized transactions has yet to undergo periods of economic stress or be attacked by creditors of the originator.
In contrast, since , South Korean reforms seem to be demonstrably successful.
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Malaysian common law supports securitization. Rules setting out general parameters for securitization were first published only in , but sales of whole or partial interests in pools of home mortgages began in the mids.
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Shariah- compliant transactions have been few to date and involve intricate structuring at all stages, but are now considered to be generally feasible, at least as single deals. The most notable provisions are shown in Table 6.
In particular, these allow for the creation of SPVs, which would not otherwise be permitted by the general provisions of national civil codes. Several Indonesian securitized transactions were completed before but post-crisis deals are virtually non-existent because counterparties may have been more willing to enter deals in a time of moderate A recent unreported decision of the Indonesian Supreme Court has created transaction uncertainty in the context of foreign borrowing by affirming the contiguous treatment of a company guarantor and its subsidiary SPV and voiding a financing contract to which the two entities purported to be separate parties.
This may increase the legal risks of securitized transactions. See also supra note Since , there has been some doubt that regulatory decrees, upon which any new transaction will depend, may subsist during its lifetime. Finally, certain jurisdictions are affected by related issues of law, tax, or market rules, rather than pure securitization provisions.
This increases contractual uncertainty, and applies, for example, in the Philippines and for domestic transactions in Taiwan. A proper framework of law that provides both for company incorporation and the orderly resolution of proceedings for recovery and insolvency is therefore a crucial foundation of development. Insolvency A functioning legal framework for insolvency management is essential in the operation of any modern market-based economy.
No commercial sector can function effectively without mechanisms to recognize and govern the exit of insolvent participants. Furthermore, the financial sector will limit credit creation for many companies and individuals if lenders are uncertain that their status as secured creditors will prevail upon the liquidation of their debtors, or that a reliable means will be available for the enforcement of properly-constituted security. The general objectives of a system of corporate insolvency have been described as the reduction of uncertainty, promotion of efficiency, and fair and equitable treatment for all participants.
A well-administered insolvency system may be valuable in promoting market discipline. Effective insolvency laws provide the means for the identification of non-competitive participants and, in some cases, for their controlled exit. It thus provides an effective penalty for the least competitive as well as a potential solution to the ensuing reallocation of resources.