Asian Principles of Business Restructuring

A joint project by the International Insolvency Institute and Asian Business Law Institute


Background

Since the Asian Financial Crisis, there has been a greater push for financial integration in Asia. However, the laws governing business reorganisation remain a patchwork of laws with different approaches and philosophies. This creates time and cost inefficiencies in a region that is seeing growing cross-border investment. To that end, the project, which is being jointly undertaken by the Asian Business Law Institute (ABLI) and the International Insolvency Institute (III), aims to publish a set of Asian Principles of Business Restructuring which will seek to eliminate these inefficiencies.

The project involves two phases:

  • Phase one: A mapping exercise of the business reorganisation regimes (both in-court and out-of-court) in ASEAN, Australia, China, Hong Kong, India, Japan and South Korea. The mapping exercise will be published as a compendium of “Jurisdiction Reports” for each of the 16 jurisdictions considered.
  • Phase two: An examination of the Jurisdictional Reports to determine the areas of similarity and make recommendations for ways in which the regimes in each jurisdiction could work more effectively with one another. The aim is to publish a set of Asian Principles of Business Restructuring (again, covering in-court and out-of-court regimes) directed at judges and practitioners, but also legislators and policy-makers in Asia.

The project is being undertaken a number of committees comprised of members of the III and the global insolvency community who are highly regarded experts in insolvency/restructuring in their own jurisdiction and internationally.

The Principles will be jointly issued by ABLI and the III. The joint involvement of both these institutions speaks to its importance and significance, particularly for Asia, and it is intended that these Principles will inform all stakeholders in Asia on an appropriate approach to Asian restructurings and thereby advance convergence in Asian insolvency laws.

Phase one. Mapping the business reorganisation regimes of Asia

On 1 February 2019, in furtherance of phase 1 of the Project, the III and ABLI launched a questionnaire on the business reorganisation regimes in Asia (Questionnaire).

 


   Asian Principles of Business Restructuring Questionnaire
by Dr Paul Omar
1 February 2018
34 pages

Download the Questionnaire

 

The Questionnaire covers a wide variety of issues for both in-court and out-of-court procedures. From the role of insolvency office-holders, to the effect of stays/moratoria, rescue financing, ranking and priority, the treatment of foreign creditors, employment issues, avoidance/clawback and safe harbour, group insolvencies, MSMEs and international and cross-border insolvency law.

The Questionnaire was produced by Dr Paul Omar with input from the Honourable Chief Justice James Allsop AO, Mr Sumant Batra, Professor Charles Booth, Mr Harish Chander, Professor Louise Gullifer QC, Mr Look-Chan Ho, President Luciano Panzani, Professor Christoph Paulus, Professor Bob Wessels, Professor Min Han, Mr Gordon Johnson, Mr George Kelakos, Mr John Marsden, Professor John Pottow, the Honourable Justice Kannan Ramesh and Mr Hideyuki Sakai .

The Questionnaire has been provided to experts (Jurisdictional Reporters) for each of 16 jurisdictions considered by the Project (see below). The Jurisdictional Reporters will consider the Questionnaire in preparing 16 individual reports (Jurisdictional Reports) on the business reorganisation regimes (both in-court and out-of-court) in each of the 16 jurisdictions.

After editing, the Jurisdictional Reports will be compiled and published as a compendium as part of ABLI's Legal Convergence Series.

Conception

The Project was conceived in 2016 by the following group of leading figures in the insolvency community, drawn from the distinguished membership of the III:

Jurisdictions

The Project considers the laws, procedures and practices in each of the ten ASEAN member states (Brunei, Cambodia, Indonesia, Lao PDR, Malaysia, Myanmar, the Philippines, Singapore, Thailand and Vietnam), in addition to five1 of the six Asia-Pacific states (including Hong Kong SAR) with which ASEAN has existing free trade agreements. That is:

Contributors

The project has 60 contributors from around the world. Consistent with ABLI's Asia-centric focus, 68% of contributors are from the ASEAN member states, East Asia and South Asia, with an additional 10% from Australia. ABLI has also been fortunate to secure the involvement of several stakeholders, including from the global judiciary, academia and government. Consistent with ABLI's aim of providing practical guidance, 64% of contributors are restructuring practitioners. 


Advisory Committee

  1. The Honourable Chief Justice James ALLSOP
  2. Mr Sumant BATRA
  3. Professor Charles BOOTH
  4. Dr Mohamed Idwan GANIE
  5. Professor Louise GULLIFER
  6. The Honourable Justice Jonathan HARRIS
  7. Mr Francisco Ed LIM
  8. The Honourable Justice Brigitte MARKOVIC
  9. Professor OH Soo-Geun
  10. President Luciano PANZANI
  11. Professor Christoph PAULUS
  12. The Honourable James PECK
  13. The Honourable Justice Kannan RAMESH
  14. The Honourable Lord Justice David RICHARDS
  15. Dr Janis SARRA
  16. Dr Annerose TASHIRO
  17. Professor WANG Weiguo
  18. Professor Emeritus Bob WESSELS
  19. Professor Jay WESTBROOK
  20. Professor Wisit WISITSORA

Working Committee

  1. Associate Professor Stephen BULL
  2. Mr Harish CHANDER
  3. Mr Gilberto D GALLOS
  4. Professor Min HAN
  5. Mr HO Look Chan
  6. Mr Gordon JOHNSON
  7. the Honourable Justice Dr Kanok JULLAMON
  8. Mr George KELAKOS
  9. Mr John MARSDEN
  10. Mr Rabindra NATHAN
  11. Mr NGUYEN Hoang Anh
  12. Ms Maria O'BRIEN
  13. Professor Paul OMAR
  14. Professor John A. E. POTTOW
  15. Mr Tim SACKAR
  16. Mr Hideyuki SAKAI
  17. Mr ZHAO Kuncheng

Editing Sub-Committee

  1. Associate Professor Stephen BULL
  2. Mr Gordon JOHNSON
  3. Mr George KELAKOS
  4. Mr John MARSDEN
  5. Professor Paul OMAR
  6. Professor John A. E. POTTOW

Jurisdictional Reporters

  1. Scott ATKINS, Norton Rose Fulbright, Sydney, Australia
    (III profile; LinkedIn profile; Firm profile)
  2. Shin-ichiro ABE, Kasumigaseki International Law Office, Tokyo, Japan
    (III profile; Firm profile)
  3. Andrew CHIEW Ean Vooi, Lee Hishammuddin Allen & Gledhill, Kuala Lumpur, Malaysia
    (LinkedIn Profile; Firm profile)
  4. Jay COHEN, Tilleke & Gibbins, Phnom Penh, Cambodia
    (LinkedIn profile; Firm profile)
  5. Shinnosuke FUKUOKA, Nishimura & Asahi, Tokyo, Japan
    (III profile; LinkedIn profile; Firm profile)
  6. Pulkit GUPTA, EY, New Delhi, India
    (LinkedIn profile)
  7. Indri Pramitaswari “Mita” GURITNO, Hadiputranto, Hadinoto & Partners, Jakarta, Indonesia
    (LinkedIn profile; Firm profile)
  8. the Honourable Justice Dr Kanok JULLAMON, Bankruptcy Division, Supreme Court of Thailand, Bangkok, Thailand
  9. Andi Y KADIR, Hadiputranto, Hadinoto & Partners, Jakarta, Indonesia
    (Linked profile; Firm profile)
  10. Yosuke KANEGAE, Nagashima Ohno & Tsunematsu, Tokyo, Japan
    (LinkedIn profile; Firm profile)
  11. Zentaro NIHEI, Anderson Mori & Tomotsune, Tokyo, Japan
    (III profile; LinkedIn profile; Firm profile)
  12. LEE Hock Chye, Rajah & Tann (Laos), Vientiane Capital, Lao PDR
    (Firm profile)
  13. Maria O’BRIEN, Baker McKenzie, Sydney, Australia
    (LinkedIn profile; Firm profile)
  14. Nava PALANIANDY, Ahmad Isa & Partners, Brunei Darussalam
    (LinkedIn profile)
  15. Antonio Jose Gerardo T. PAZ, Angara Abello Concepcion Regala & Cruz Law Offices (ACCRALAW), Manila, the Philippines
    (LinkedIn profile; Firm profile)
  16. PENG Fei, Legal Daily, Beijing, China
  17. Ketsana PHOMMACHANE, Department of International Cooperation, Ministry of Justice, Vientiane Capital, Lao PDR
  18. Tom PUGH, Mayer Brown, Hong Kong
    (LinkedIn profile; Firm profile)
  19. Chiyong RIM, Kim & Chang, Seoul, South Korea
    (III profile; Firm profile)
  20. Tim SACKAR, Clayton Utz, Sydney, Australia
    (LinkedIn profile; Firm profile)
  21. Manoj SANDRASEGARA, WongPartnership, Singapore
    (III profile; LinkedIn profile; Firm profile)
  22. Timur SUKIRNO, Hadiputranto, Hadinoto & Partners, Jakarta, Indonesia
    (Firm profile)
  23. SHEN Yuhan, King & Wood Mallesons, Shanghai China
    (LinkedIn profile)
  24. SIM Kwan Kiat, Rajah & Tann, Singapore
    (Firm profile; Firm profile)
  25. Dr Vu Thanh VAN, Avenir Legal, Ho Chi Minh City, Vietnam
  26. Agung WIJAYA, Hadiputranto, Hadinoto & Partners, Jakarta, Indonesia

Chronology

  • 3 April 2019, ABLI hosts workshop for phase one of the Project in Singapore.
  • 2 April 2019, ABLI hosts workshop for phase one of the Project in Singapore.
  • 2 April 2019, Dr Paul Omar presents the Project to the Academics Colloquium at the INSOL Annual Conference held in Singapore. 
  • 4 February 2019, Editing Sub-committee appointed
  • 1 February 2019, Launch of Questionnaire as part of phase one of the Project
  • 26 September 2018, Meeting of the Advisory and Working Committees in New York, USA
  • 22 May 2018, First meeting of the Working Committee
  • 18 January 2018, First meeting of the Steering Committee
  • 27 November 2017, First meeting of the Advisory Committee. Steering Committee members appointed
  • 9 June 2017, Project proposed approved by ABLI's Board of Governors

 

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  1. The other Asia-Pacific state with which the ASEAN members have a free trade agreement is New Zealand, which is not considered by this Project.  



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