Asian Principles of Business Restructuring
Background
Since the 1997 Asian Financial Crisis, there has been a greater push for financial integration in Asia. However, the laws governing business reorganisation remain a patchwork 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 jointly undertaken by ABLI and the International Insolvency Institute (III), aims to publish a set of Asian Principles of Business Restructuring (Asian Principles) 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 SAR, India, Japan and South Korea.
- Phase two: An examination of the output of Phase One to determine the areas of similarity and make recommendations for ways in which the regime in each jurisdiction could work more effectively with one another. The aim is to publish a set of Asian Principles of Business Restructuring (Asian Principles), again, covering in-court and out-of-court regimes).
The project is being undertaken by a number of committees comprising members of the III and the global insolvency community who are highly regarded experts in insolvency/restructuring in their own jurisdiction and internationally.
The Asian 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 the Asian 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
Questionnaire
On 1 February 2019, in furtherance of this phase, ABLI and the III launched a questionnaire on the business reorganisation regimes in Asia.
Asian Principles of Business Restructuring Questionnaire
by Dr Paul Omar
1 February 2018
34 pages
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, micro, small and medium-sized enterprises, 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 was provided to experts (Jurisdictional Reporters) for each of 16 jurisdictions considered by the project (see below). The Jurisdictional Reporters considered the Questionnaire in preparing their reports (Jurisdictional Reports) which were published in a compilation titled Corporate Restructuring and Insolvency in Asia 2020 (Restructuring Compendium).
Restructuring Compendium
On 2 April 2020, ABLI and the III published Corporate Restructuring and Insolvency in Asia 2020, the third publication in ABLI’s Legal Convergence Series.
Corporate Restructuring and Insolvency in Asia 2020
2 April 2020
804 pages
Phase two: formulating best practice guides under the Asian Principles
The Asian Principles comprise several independent but inter-connected best practice guides, each focusing on one topic.
On 10 May 2022, ABLI and the III jointly released the Guide on the Treatment of Insolvent Micro and Small Enterprises in Asia (MSE Guide) under the project.
The MSE Guide identifies five Key Principles for more immediate adoption by jurisdictions as building blocks of a well-functioning MSE insolvency framework, and six Aspirational Principles that should ideally be considered and adopted by jurisdictions over the longer term to provide MSEs with a more comprehensive legal and institutional environment to deal with financial distress. This unique tiered approach is designed by considering the extreme diversity of institutional development of Asian jurisdictions and with the hope of assisting policymakers better digest the recommendations made.
Read the press release for the MSE Guide here.
Guide on the Treatment of Insolvent Micro and Small Enterprises in Asia
May 2022
65 pages
On 23 March 2023, ABLI and the III jointly released the Guide on Conducting an Out-of-court Workout in Asia (Workout Guide) under the project.
The Workout Guide identifies nine principles that underpin a successful out-of-court workout. It also provides 11 practical tips for completing a successful out-of-court workout, aiming to strike the right balance between espousing general best practices (in the form of principles) and providing practical guidance (in the form of tips), considering the lack of sufficient knowledge or even awareness of out-of-court workout in Asia.
Read the press release for the Workout Guide here.
Guide on Conducting an Out-of-court Workout in Asia
March 2023
80 pages
Project 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:
- Mr Donald BERNSTEIN of Davis Polk & Wardwell LLP;
- Mr Alan BLOOM of EY;
- Professor Rosalind MASON of Queensland University of Technology;
- the Honourable James PECK of Morrison & Foerster LLP;
- the Honourable Justice Kannan RAMESH of the Supreme Court of Singapore; and
- the late Dr Shinjiro TAKAGI of Frontier Management Inc.
Jurisdictions
The project considers the laws, procedures and practices in each of the ten ASEAN member states, in addition to five APAC jurisdictions with which ASEAN has existing free trade agreements.
They are Australia, Brunei, Cambodia, China, Hong Kong SAR, India, Indonesia, Japan, Lao PDR, Malaysia, Myanmar, Philippines, Singapore, South Korea, Thailand and Vietnam.
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 stakeholders from the global judiciary, academia and government. Consistent with ABLI’s aim of providing practical guidance, 64% of contributors are restructuring practitioners.
Refer to our Contributors page for the full list of contributors to the project, including members of the Advisory Committee and the Working Committee, authors of the Restructuring Compendium, and drafters of the Asian Principles.
Key Milestones
- On 19 May 2022, ABLI and the III publish Guide on the Treatment of Insolvent Micro and Small Enterprises in Asia, a component of the Asian Principles.
- On 8 March 2022, ABLI holds virtual joint committee meeting for phase two of the project.
- Between November and December 2021, ABLI conducts external consultation of a draft being prepared under phase two of the project.
- Between August and September 2021, ABLI conducts internal review of a draft being prepared under phase two of the project.
- 12 May 2021, ABLI holds virtual joint committee meeting for phase two of the project.
- 2 April 2020, ABLI and III launch Corporate Restructuring and Insolvency in Asia 2020.
- 2 and 3 April 2019, ABLI hosts workshops for phase one of the project in Singapore.
- 2 April 2019, the project is briefly presented at the Academics Colloquium at the INSOL Annual Conference held in Singapore.
- 1 February 2019, the Questionnaire is published as part of phase one of the project.
- 26 September 2018, a joint meeting of the Advisory and Working Committees is held in New York, US.
- 22 May 2018, first meeting of the Working Committee is held.
- 18 January 2018, first meeting of the Steering Committee is held.
- 27 November 2017, first meeting of the Advisory Committee is held.
- 9 June 2017, the project proposal is approved by ABLI’s Board of Governors.
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