2002年-世界发展银行全球_Argentina___Insolvency_and_Creditor_Rights_Systems_15页_506kb

Summary of the Report on the Observance of Standards and Codes (ROSC) – Argentina: Insolvency and Creditor Rights Systems

Executive Summary

Argentina's insolvency and creditor rights systems have faced significant challenges during a four-year recession, testing the effectiveness of conventional debt resolution mechanisms. The 1995 Insolvency Law (LCQ 24.522) introduced modern procedures for corporate liquidation and reorganization, improving the legal environment for creditors. However, the adoption of Law 25.563 in February 2002 created a corporate safe haven by imposing a six-month automatic injunction against creditor actions, undermining the predictability and efficiency of the system.

Law 25.589, enacted in May 2002, reversed many of the negative impacts of Law 25.563, reinstating key provisions of the LCQ and restoring a level playing field for debtor-creditor relationships. This law also introduced new rules that should enhance the efficiency and fairness of the insolvency system. Despite these improvements, inefficiencies remain, particularly in the judicial process and the role of "síndicos" (insolvency administrators), which hinder the system's effectiveness.

Core Content

• Legal Framework: Argentina has a modern insolvency law (LCQ 24.522) that provides for both liquidation and reorganization. It is applied to both natural and artificial persons, including government-owned corporations.
• Enforcement of Creditor Rights: The system for enforcing unsecured and secured claims is reasonably effective, with procedures for expedited summary proceedings and judicial foreclosure. The enforcement of secured rights is supported by a variety of mechanisms, including mortgages, pledges, warrants, and debentures.
• Secured Rights: Rights in rem (secured rights) are given priority in the insolvency hierarchy and are subject to accelerated execution. However, the legal framework for pledges on intangible assets is not well developed due to outdated laws.
• Insolvency Proceedings: Liquidation and reorganization processes are available, but the latter is less commonly used due to inefficiencies. Liquidation proceedings typically take 1–5 years, while reorganizations take 1.5–2 years in specialized jurisdictions.
• Role of the "síndico": The "síndico" is appointed by the court and plays a central role in managing insolvency proceedings. However, they are often perceived as lacking objectivity and expertise, which affects the efficiency and uniformity of the process.
• Judicial Foreclosure: A new special regime has reduced the average judicial foreclosure period from 12–15 months to 3–6 months, supporting non-judicial foreclosure.

Main Issues and Findings

• Inefficiencies: The system suffers from inefficiencies, including court congestion, lack of insolvency specialization among judges, and the perception of "síndicos" as not objective or expert.
• Impact of Law 25.563: This law significantly disrupted the legal environment, creating a moratorium and suspending the "salvataje" (cramdown) provision, which was a key mechanism for restructuring.
• Impact of Law 25.589: This law has restored the previous legal framework and introduced new rules that support restructuring and creditor rights. It has the potential to improve the system, but further refinements are needed.
• Credit Risk Management: There is no formal framework for corporate workouts, which are not widely used due to lack of incentives and the complexity of the legal environment.

Key Recommendations

• Introduction of a New Workout Mechanism: To address systemic levels of corporate distress, a new workout mechanism should be introduced.
• Improvement of Legal and Institutional Framework: Further refinements to the legal and institutional framework are necessary to improve efficiency and uniformity.
• Specialized Training for Judges: The lack of insolvency specialization among judges should be addressed through training and continuing education.
• Enhancement of "síndico" Objectivity and Expertise: The role of "síndicos" should be improved to ensure objectivity and sufficient expertise in managing complex restructurings.
• Development of a Legal Framework for Workouts: A new legal framework for workouts should be developed to encourage their use and improve credit risk management.

Legal and Institutional Structure

• Judicial Jurisdiction: Insolvency matters are under the jurisdiction of provincial judges, not federal judges.
• Judicial Oversight: Judges have significant roles in insolvency proceedings, including the power to investigate fraud and illegal activities.
• Judicial Councils: Many provinces have established judicial councils for judicial selection, budgetary matters, and disciplinary issues.
• Training and Education: Judicial schools and institutions provide training for judges and court staff, with recent developments in graduate programs for lawyers.
• Professional Bodies: Accountant professional bodies have recognized the importance of insolvency and have established ethical standards and best practices for members specializing in insolvency.

Conclusion

The legal and institutional framework for insolvency and creditor rights in Argentina is reasonably modern but faces significant challenges. The recent enactment of Law 25.589 has restored many of the previous mechanisms and introduced new rules that should improve the system. However, further refinements and reforms are necessary to address the remaining inefficiencies and ensure the system's effectiveness and fairness.