The UK introduced changes in its insolvency law23 in April 2006, which differs only slightly from the stipulations in Article 14 of the UNCITRAL Model Law on Cross-Border Insolvency. The difference is that while UK creditors are notified through publications in the local press, foreign creditors can be notified through such foreign publications as ‘British insolvency officeholder’. The standpoint reflected in Article 14 of the UNCITRAL Model Law on Cross-Border Insolvency that notification should be made to foreign creditors individually has already been incorporated in UK legislation prior to the coming in force of the UNCITRAL Model Law.
The insolvency regime currently existing in the EU with regard to financial institutions is determined, beside other documents, by the 2001 EU Directive 2001/24/EC on the reorganization and winding-up of credit institutions. Article 13 of the Directive stipulates that a liquidator or another administrative or judicial body must place a notification concerning the decision that a liquidation procedure be initiated by publishing an extract from that decision in the Official Journal of the European Communities and at least in two nationally circulating newspapers in each of the receiving countries.
The procedure for providing all known creditors with relevant information is described in the Directive’s Article 14. When initiating a liquidation procedure, an administrative or judicial body in the receiving country must inform individually all known creditors who have legal addresses, places of location or head offices in other EU countries. The informing is done by means of sending a notification containing indications of the timelines for presenting claims and the place of their presentation.
The language of notification is determined in Article 17, whereby it is stipulated that information should be presented in the official language or one of the official languages of the receiving country, the title of the notification, “Invitation to present a claim. Timelines”, in all the official languages of the EU, being mandatory.
Thus, in order to properly regulate the relations arising in cases of cross-border insolvency of financial institutions, and in particular the procedure for notifying foreign creditors, it is necessary to adopt in Russia a separate federal law based on the provisions of the UNCITRAL Model Law on CrossBorder Insolvency, to introduce amendments into the existing laws on the basis of the UNCITRAL Model Law on Cross-Border Insolvency, and to determine in more detail the issues of cross-border bankruptcy in the RF Civil Code.
The proposals concerning the procedure for the notification of the foreign creditors of financial institutions as to the initiation against their debtor of an insolvency (bankruptcy) proceeding may be presented as follows:
1. The adoption of a separate federal law based on the UNCITRAL Model Law on Cross-Border Insolvency;
2. The introduction of changes into RF bankruptcy legislation, designed to address the following issues:
Ordonnance n° 2004-1127 du 21 octobre 2004 portant transposition de la directive 2001/24/CE du Parlement europen et du Conseil du 4 avril 2001 concernant l'assainissement et la liquidation des tablissements de crdit (France).
Legislative Decree of 9 July 2004, No 197 (Italy) UK Insolvency Enterprise Act 2002, The Credit Institutions (Reorganization and Winding up) Regulations a. similarity of the methods of notifying creditors situated outside Russia and those inside Russia;
b. the mandatory indication in the notification of a reasonable period for the presentation of claims by foreign creditors and the place of their presentation;
c. an extended period for the presentation of claims by foreign creditors as compared for that established for Russian creditors; in this connection, legislation may determine, instead of a precise period, only the fact of that period being extended; the precise timelines may be determined individually in each specific case by a court of justice, but be no shorter than those established for Russian creditors;
d. the press organs for publishing the notification of foreign creditors concerning the initiation of insolvency (bankruptcy) proceedings against their debtor in RF territory. These press organs may be: Rossiiskaia gazeta [The Russian Newspaper]; Vestnik Banka Rossii [The Bank of Russia’s Herald]; the Deposit Insurance Agency’s website (www.asv.org.ru); or other websites, according to the type of a given financial institution.
These press organs are obliges to place the relevant information both in the Russian and English languages.
3. Within the framework of the CIS and/or EurAsEC, the information as to the initiation of an insolvency (bankruptcy) proceeding against a debtor must be presented in the receiving country’s official language, while the title of the notification, “Invitation to present a claim. Timelines”, - in all the official languages of the CIS and/or EurAsEC respectively. In this connection, within the framework of the CIS and/or EurAsEC, a special additional press organ may be determined for placing notification for foreign creditors.
Restrictions to economic growth in industry on the eve of crisis (results of polls of industrial enterprises) A. Kaukin, L. Freinkman Results of the IET’s polls recorded the estimates offered by enterprises as to the restrictions existing to their development at the time of the onset of the financial crisis. On the whole, the economic environment can be characterized moderately satisfactory. The resource-linked (labor, power supply) and macroeconomic (inflation, lack of stable policy) factor are perceived by enterprises as key restrictions to their growth. Most of the administrative barriers (including corruption) are not regarded as serious obstacles to development. There are grounds to believe that, by comparison with this decade’s first half, the administrative restrictions to the development of enterprises have become more lax. However, this improvement by no means apply equally to all the groups of enterprises.
In September 2008, the IET’s Department for Economic Situation Surveys conducted a poll among Russian industrial enterprises aimed at identifying the existing obstacles to successful economic development. Within the poll’s framework the directors of enterprises were offered questions concerning their assessment of the influences of various factors on their enterprises’ development. The factors potentially restrictive to development were subdivided into 3 groups: resource-linked restrictions, administrative restrictions and macroeconomic restrictions. These questions were fully or partly answered to by the directors 545 enterprises. In this connections, the questions concerning the first group of restrictions were answered on the average by 97.7 % of respondents; those concerning the second group – by 96.7 %; and those concerning the third group – by 97.4 %.
It should be emphasized that the poll took place in September, i.e. during the period when the real sector of the national economy was still faced with only minimum negative effects produced by the global financial crisis. Evidently, as the crisis aggravated, the perception of obstacles to production development underwent rapid changes, and so towards the end of 2008 it, most probably, already became markedly different from that demonstrated by the poll’s results. Nevertheless, the analysis of the “pre-crisis” answers of enterprises is still of significant interest, since it reflects the ways the obstacles to growth industry were viewed at the end of the period of relatively successful economic development of 2000 – 2008, and also in a certain sense determines the structure of obstacles as it emerged in the framework of a certain specific development model (characterized by high prices of raw materials, relatively easy access to external financing, and the State’s increasing participation in economic life).
The distribution of enterprises’ answers by each factor included in the poll is shown in Fig. 1 and in Table 1. Fig. 2 presents the balance (as %) of the answers relative to each factor, i.e. the difference between the number of enterprises pointing to a given factor as a significant obstacle to the development of their production and the number of those not regarding that factor as an obstacle.
On the whole, the economic environment in September 2008 can be described as moderately satisfactory. Among the 16 factors included in the poll, five were named as significant obstacles to production development by more than half of the enterprises participating in the poll. Another seven factors represent either significant or insignificant obstacles more than half of the enterprises across the sample. Only one factor out of 16 (prevailing labor legislation) is described as no obstacle to development by more than half of the sample. At the same time, the significance of the three different groups of factors is by no means similar: according to the respondents, resource-linked and macroeconomic restrictions were producing much stronger influence on the development of enterprises than administrative (institutional) restrictions did. This latter finding is rather unexpected. Traditionally, it has been believed that it is the institutional restrictions, linked to the State exercising its regulating and supervisory functions, that are the most restrictive to the development of the real sector of Russia’s national economy24.
Among the factors of the first group, which are associated with resource-linked restrictions, the majority represented significant obstacles to the development of enterprises. The strongest concern of the directors of enterprises was the shortage of labor resources: 59.1 %25 of the respondents named it as a significant obstacle to growth; 24.6 % - as an insignificant obstacle; and only 13.4 % of the respondents regarded it as no problem at all. Next in importance26 among the restrictions to growth, according to most of the enterprises, were problems with power supply and the cost of energy resources – in 55.0 % and 28.1 % respectively of all answers this factor was described as a significant or insignificant obstacle, and only 14.3 % of the enterprises has no problems with power supply. The quality and cost of transport services, the cost of attracted financial resources and difficult access to these resources were also restricting production development at a majority of the enterprises being surveyed, although with regard to these three factors the difference between the answers “significant obstacle” and “no obstacle” is smaller than in case of the first two factors. It is also noteworthy that a considerable portion of the respondents could not assess the effect on their production of the cost of attracted financial resources and difficult access to them (14.1 % and 12.1 % respectively). The only factor in the group of resource-linked restrictions that presented no obstacle for the development of a majority of the enterprises in September 2008 was the quality and cost of communications services.
In contrast to the first group, administrative restrictions are not regarded by the majority of the enterprises surveyed as a serious obstacle. The most important factors in this group were the size of the tax burden and the supervision and audits conducted by tax agencies. The shares of enterprises estimating the first of these factors as an obstacle - either a significant or an insignificant one - are 66.6 % and 24.0 % respectively, and only 5.1 % respondents did not see any problems in their taxation level.
Tax audits were regarded as a source of serious worries by a somewhat smaller number of enterprises – 28.1%; nevertheless, the fact that the estimation “insignificant obstacles” constituted nearly half (47.9%) of all the answers to that question demonstrates that this factor was also restricting development to a significant degree. It is necessary to note that the much higher significance for enterprises of the obstacles associated with the actual level of tax burden, as compared to the problems of tax administration, was one of the unexpected findings resulting from that poll. This finding differs from the results of earlier polls among Russian enterprises and therefore, no doubt, requires further monitoring.
V. V. Dashkeev, L. M. Freinkman. Rossiia v 2007 godu: riski zamedleniia ekonomicheskogo rosta na fone sokhraniaiushcheisia institutsional’noi stagnatsii. [Russia in 2007: risks of slowdown in economic growth against the background of persistent institutional stagnation.] Voprosy ekonomiki [Issues of Economics], 2008:
4: 75 – 93.
The statistical significance of the shares of respondents that gave certain specific answers to the questions concerning different factors is sufficiently high in all the cases, if not stated otherwise in the text. We applied the standard test for the difference between two population proportions.
It should be noted that the statistical significance of the differences between the shares of enterprises that gave the answers “significant obstacle” and “no obstacle” in regard to various pairs of factors is also sufficiently high in the majority of cases.
We think it rather unlikely that any dramatic improvements could have occurred lately in the quality of tax administration in the Russian economy.
The other administrative restrictions were not regarded by the majority of respondents as serious obstacles to the development of their enterprises. The most favorable, from this point of view, were the administrative procedures reflecting the situation with labor legislation and the procedures registration and liquidation of enterprises. A total of 6.4 % and 7.2 % of enterprises respectively encountered serious problems caused by the effect of these factors; on the contrary, 57.1 % and 46.1 % of the respondents experienced no difficulties in these spheres. At the same time, it is important that an unexpectedly high percentage of directors of enterprises failed to offer any estimates of the influence on production of many administrative factors, such as the necessity to make informal deductions for the benefit of government officials (33.2 % of answers), actions undertaken by other enterprises in order to eliminate competition (30.1 %), the procedures of registration and liquidation of enterprises (25.%), the obtaining of construction permits (24.2 %), and the activity of law enforcement (16.5 %) and judicial agencies (15.8 %).