Readers of this blog will know that a number of jurisdictions around the world have remodeled their insolvency schemes based on concepts developed originally in the US under Chapter 11 of the Bankruptcy Code.Â Relatively recent examples of this trend include the Peopleâ€™s Republic of China as well as Mexico.
But not all jurisdictions have rushed to follow the US.Â For one, Hong Kong â€“ one of the worldâ€™s leading financial centers â€“ has struck out on a different path.
With origins steeped in colonial history and a long-standing tradition of UK law, Hong Kong still follows the legal contours of most commonwealth jurisdictions, including those applicable to the resolution of insolvencies.Â In Hong Kong, a “winding-up” is the traditional means of achieving a moratorium on creditor activity; however, “winding up” has been limited to liquidation.
Corporate reorganization (or â€ścorporate rescue,â€ť as itâ€™s sometimes called) relies on the implementation of a “scheme of arrangement.”Â Â In Hong Kong, however, schemes are deemed of little practical value where their comparative complexity and expense buy no moratorium from creditors.
Previously, corporate reorganization in Hong Kong relied upon an ad hoc solution â€“ utilization of the â€świnding upâ€ť procedure to implement what was known colloquially a â€śprovisional liquidation.â€ťÂ The essence of the â€śprovisional liquidationâ€ť concept is that a voluntary winding up is commenced â€“ and the debtor can avail itself of a moratorium against creditor action â€“ while a court administrator is appointed to oversee the debtor until the company and its creditors can reach acceptable reorganization terms (at which time, the winding up is dismissed and the debtor reorganized consensually).Â Though initially accepted, such solutions were ultimately sharply limited by the Hong Kong courts.
In 2009, Hong Kongâ€™s Financial Services and Treasury Bureau (FSTB) published a consultation paper reviewing corporate rescue procedure with the aim of reforming key reorganization issues.Â The FSTB paper â€“ and the different concepts it proposes for Hong Kong reorganization vis Ăˇ vis â€śUSâ€ť-style Chapter 11â€™s â€“ are the subject of recent analysis by Dr John K.S. Ho, Assistant Professor, School of Law, City University of Hong Kong and Dr Raymond S.Y. Chan, Associate Professor, School of Business, Hong Kong Baptist University.
Specifically, Drâ€™s Ho and Chan ask â€śIs Debtor-in-Possession Viable in Hong Kong?â€ťÂ In providing an answer, they discuss reform efforts in Hong Kong, noting that a â€śprovisional supervisionâ€ť has been and remains the preferred approach to Chapter 11 rather than a US-style â€śDebtor-in-Possessionâ€ť (DIP) approach, where management remains in control of its own destiny.
So why doesnâ€™t a US-oriented corporate rescue scheme work in Hong Kong?Â According to Ho and Chan, â€ś[i]n order to understand the corporate rescue law of a jurisdiction, one must also recognize the economic nature and historical development of that society.â€ťÂ Some of the differences in economic development which shape differences in US and Hong Kong insolvency laws include:
Varying Appetites for Risk.Â â€śIn the US, it is widely believed that there is a different attitude towards risk and risk-takers . . . .Â Debt forgiveness, both personal and business debt, ultimately was seen as critical to a vibrant American economy.Â These historical and economic factors explain in large part why the US business bankruptcy system is more forgiving towards the debtor than other jurisdictions are.Â However, the same analogy may not apply to the concept of corporate rescue in Hong Kong because the stakeholders which reform proposal in Hong Kong is most concerned with are different from Chapter 11 in the US.â€ť
Different Stakeholders.Â How are Hong Kong stakeholders different?Â And why should corporate rescue look different in Hong Kong than in the US?
[I]n Hong Kong, the objectives for . . . corporate rescue are radically different . . . .Â [E]mployees should generally be no worse off than in the case of insolvent liquidation and . . . consideration should be given to allow greater involvement of creditors in the rescue process in exchange for their being bound by the moratorium once the process commences and the rescue plan is agreed . . . .Â [P]revious attempt[s] to introduce a corporate rescue law failed in Hong Kong because of the disappointing treatment of workersâ€™ wages, complete exclusion of shareholders from the provisional supervision process, and the difficulty in classification of creditors.Â Therefore, if a law is to be successfully promulgated this time, greater consideration would need to be given to these stakeholders.
Though they explain how the proposed treatment of Hong Kong stakeholders in a corporate reorganization might differ from those in a US Chapter 11, Ho and Chan donâ€™t really explain the why of those differences.Â What they do offer is an explanation for the absence of any interference with secured creditorsâ€™ rights, noting that this â€śis understandable given the fact that many major secured creditors [in Hong Kong] are financial institutions such as major banks and their influence both politically and economically cannot be ignored given that the growth of Hong Kong as a financial services hub has been supported largely by the banking sector.â€ť
These differences are â€śin line with the legal creditor rights ratings of the two jurisdictions as reported in a financial economics study in which a creditor rights index is developed for 129 countries and jurisdictions. This index ranges from 0 to 4 (with higher scores representing better creditor rights) and measures four powers of secured lenders in bankruptcy.Â Hong Kong (and also the UK) has a perfect score of 4, but the US has a score of 1.â€ť
Different Corporate Ownership and Control Structures.Â A more interesting difference arises from the authorsâ€™ argument that, unlike in the US, share ownership and corporate control in Hong Kong are closely related:
According to research conducted at the turn of the millennium, . . . separation of ownership and control, [has] largely become the phenomenon in the US.Â This trend was accompanied by a shift in bankruptcy law towards a more flexible, manager-oriented regime, assuming that managers of corporations that have filed Chapter 11 will subsequently make business decisions in the best interests of the corporations as a whole. On the bankruptcy side these developments culminated in 1978 with the enactment of the Bankruptcy Code and its DIP norm.Â However, in Hong Kong, [this] type of [dispersed corporate ownership] is not as prevalent. According to research on ownership structures and control in East Asian corporations, about three-quarters of the largest 20 companies in Hong Kong are under family control, while fewer than 60 per cent of the smallest 50 companies are in the same category. As for corporate assets held by the largest 15 families as a percentage of GDP, Hong Kong displays one of the largest concentrations of control, at 76 per cent. For comparison, the wealth of the 15 richest American families stands at about 3 per cent of GDP.
Because of this reality, the Ho and Chan argue that the DIP concept so common in US reorganizations simply isnâ€™t practical in Hong Kong:
Given such context, a corporate rescue process based on the DIP concept of the US will not be practical for Hong Kong because wide dispersion of share-ownership and manager-displacing corporate reorganization simply do not exist in reality.Â This is consistent with the governmentâ€™s proposal in rejecting the DIP given concerns that if the existing management was allowed to remain in control, a company could easily avoid or delay its obligations to creditors as the managers of a family business either are family members or are nominated by the family.Â They are expected to place the familyâ€™s interests in the corporation as the first priority even at the expense of creditorsâ€™ interests.
Though these differences may be true in the case of publicly held and traded US corporations, they are not so clear in the case of closely-held US companies – which many readers will acknowledge comprise the bulk of US business.
Why No Post-Petition Financing?Â As for post-petition financing â€“ a mainstay of US reorganizations â€“ Ho and Chan point out that though the US has developed a vibrant distressed debt market, â€śthe debt market is not as developed and is materially underused in Hong Kong.Â The major reason for illiquidity and lack of use is best expressed as Hong Kongâ€™s cultural background.Â Hong Kong lacks no resources for deal structuring but has no tradition of traded debt, and corporate governance practice has historically been insufficient to support issue of debts by large companies.â€ť
Economic Efficiency.Â Finally, the authors cite well-recognized and frequently noted flaws in the Chapter 11 process: Its perceived inefficiency arising from its â€śone-size-fits-allâ€ť approach, as well as the arguably high rates of recidivism amongst those debtors who do successfully confirm a Chapter 11 Plan.
Whatever oneâ€™s take on Ho and Chanâ€™s assessment of US-style reorganizations, their work affords an interesting glimpse into alternative methods of corporate rescue currently under consideration in one of the worldâ€™s most sophisticated financial jurisdictions.