2014年-世界发展银行全球_Moldova_Financial_Sector_Assessment_Program___Insolvency_and_CreditorDebtor_Regimes--Report_on_the_Observance_of_Standards_and_Codes_190页_2mb

Summary of the Financial Sector Assessment Program (FSAP) Report on Moldova: Insolvency and Creditor/Debtor Regimes

Executive Summary

Moldova has made notable progress in recent years in reforming its commercial law regime, particularly in the areas of creditor protection and insolvency. However, the country still faces significant challenges in implementing these legal frameworks effectively. The secured transactions and enforcement regime, while largely aligned with international standards, has implementation issues that hinder access to credit and the effective resolution of financial distress. The institutional framework for supporting creditor rights and insolvency is also in need of urgent strengthening.

Core Content

A. Creditor Rights: Context and Legal Framework

• Legal System Overview: Moldova has a relatively small and underdeveloped financial sector, with total assets representing around 75% of GDP.
• Secured Transactions: The legal framework for secured transactions is sound, but its implementation is problematic. Financial institutions heavily rely on real estate as collateral, which may not be optimal.
• Unsecured Credit: Unsecured credit for businesses is practically non-existent, with a strong preference for over-collateralization, which limits access to credit.
• Registry Systems: The land registry (Cadastre) is efficient, but the system for registering pledges over movable assets is complex and lacks transparency.
• Legal Gaps: The law does not fully support a functional concept of security interests, and certain types of pledges, such as enterprise pledges, are not well understood or used in practice.
• Future Reforms: Some of the issues identified are expected to be addressed in the reform of the secured transactions regime, which was amended in November 2014.

B. Risk Management and Corporate Workouts

• Credit History Bureau: A credit history bureau exists but is limited in scope and effectiveness. Only commercial banks are required to provide data, and there is a lack of comprehensive credit information.
• Debt Restructuring: There is limited use of out-of-court collective restructuring tools. Lenders are willing to reschedule loans but rarely consider other forms of restructuring.
• Rescue Culture: A "rescue culture" has not yet developed, and creditors are not encouraged to cooperate in rescuing enterprises.
• Key Issues:
  • Limited access to timely and accurate financial information.
  • Lack of experience and practice in debt restructuring techniques.
  • No bridge lending mechanisms for distressed businesses during restructuring.
  • Tax legislation and practice do not support debt restructuring.
  • Provisions on avoidable transactions may discourage legitimate restructuring activities.
  • Mistrust among stakeholders and institutions hinders effective restructuring.

C. Legal Framework for Insolvency

• Insolvency Law Reform: The new insolvency law introduced in 2012 is more modern and comprehensive, including procedures for both bankruptcy and restructuring.
• Due Process: Despite legal provisions, due process is often compromised in practice. The quality of information provided by debtors is poor, and there are issues with notification and access to insolvency proceedings.
• Access to Proceedings: Creditors face cumbersome criteria for initiating insolvency proceedings, requiring a copy of an irrevocable court judgment or arbitration award.
• Provisional Measures: The moratorium on interest accrual for secured creditors is beneficial, but there are uncertainties regarding post-petition interest payments and the availability of relief from the stay for secured creditors.
• Creditors' Participation: Creditors' meetings and committees play an important role, but their powers are sometimes abused, and there is a lack of oversight.
• Asset Disposition: The law provides useful rules for asset use and sale, but secured creditors may block beneficial sales or restructuring plans, limiting flexibility.
• Post-Petition Borrowing: Lenders are hesitant to provide new finance during insolvency unless they are given sufficient security. The law allows for priority to new lenders but lacks clear conditions for such lending.
• Avoidance of Vulnerable Transactions: The provisions on avoiding antecedent transactions are not fully utilized due to a lack of resources and clarity. The absence of a "safe harbor" provision for out-of-court workouts is a concern.
• Priorities: The law outlines a clear list of priorities for the distribution of assets, based on pre-acquired rights.

Main Policy Recommendations

• Improve Secured Transactions Regime: Address issues related to the valuation of mortgaged assets, over-collateralization, and the registration of pledges over movable assets.
• Enhance Enforcement Mechanisms: Reform the ordinance procedure to ensure it functions as a fast-track alternative for claims with an executive title.
• Strengthen Institutional Framework: Improve the institutional and regulatory support for creditor rights and insolvency, including better oversight and coordination between relevant bodies.
• Promote Rescue Culture: Encourage cooperative behavior among creditors and debtors to support enterprise rehabilitation.
• Enhance Transparency and Access: Improve the transparency of the pledge registry and ensure that all creditors are adequately informed of insolvency proceedings.
• Develop Effective Restructuring Tools: Introduce and promote the use of out-of-court collective restructuring mechanisms, including bridge lending and debt-for-equity swaps.
• Clarify Legal Provisions: Ensure that the legal framework clearly defines and supports the use of enterprise pledges and other security instruments.
• Implement "Safe Harbor" Provisions: Include provisions that protect good faith transfers made during out-of-court workouts from being challenged in insolvency proceedings.
• Improve Due Process: Strengthen the due process aspects of insolvency proceedings, including the quality of information provided and the enforcement of notification rules.

Concluding Remarks

The insolvency and creditor/debtor regimes in Moldova are in need of significant improvements in both legal and institutional frameworks. The current system, while modern in its structure, suffers from implementation challenges and lacks the necessary mechanisms to support effective risk management and enterprise restructuring. Strengthening these frameworks is crucial for enhancing access to credit, promoting financial stability, and fostering a more cooperative and transparent environment for creditors and debtors.