2008年-世界发展银行全球_Financial_Sector_Assessment_Program___Malawi_-_Legal_Framework_for_Acceptance_Registration_and_Realization_of_Collateral_9页_714kb

报告摘要

Summary of the Legal Framework for Acceptance, Registration, and Realization of Collateral in Malawi

Core Content

This document provides an analysis of the legal and procedural framework governing secured transactions, collateral registration, and realization in Malawi, as part of the World Bank's Financial Sector Assessment Program (FSAP). It outlines the current state of the legal system and identifies key areas for reform to improve the efficiency and effectiveness of the financial sector.

Main Points

I. Types of Collateral

Real Estate is the most popular form of collateral, particularly freehold land.
Movable and immovable assets are accepted, though movable assets are less common.
Floating charges (debentures) are rare due to the lack of effective remedies beyond liquidation.
Personal and corporate guarantees are also used, depending on the strength of the group.
Customary land constitutes 65% of all land in Malawi, with only user rights and no formal titles.

II. Procedure and Costs for Secured Transactions

Freehold land can be mortgaged or transferred with minimal procedural hurdles.
Leasehold land requires prior government approval, which is time-consuming and costly.
Government consent for leasehold land transfer is processed in Lilongwe and can cost up to 3,000 Kwacha.
Land transactions involve multiple fees, including city tax, ground rent tax, and a stamp duty of 3% for sales and 0.6% for mortgages.
Registration fees are also high, with land transfer documents requiring a 2,000 Kwacha fee.
Legal fees for drafting and negotiating security documents are excessive (1% and 2% respectively) and apply to all types of transactions, not just land-related ones.
Banks often charge these fees even though they have in-house legal teams, increasing the burden on debtors.

III. Registration System

Malawi has a dual registration system: title registration and deeds registration.
Deeds registration is outdated and lacks guarantees of title validity.
Title registration is more reliable and used in urban centers like Blantyre, Zomba, and Lilongwe.
Land registries are understaffed, lack infrastructure, and use manual systems, leading to inefficiencies and delays.
The BESTAP Project is supporting the computerization of land and company registries, but capacity building and training remain critical.

IV. Credit Reference Bureau

Malawi currently has an informal credit bureau due to the absence of a legal framework.
Lenders are reluctant to share customer information with the bureau due to privacy concerns.
The proposed Credit Referencing Bureau Bill aims to regulate the bureau but has major limitations:
- It only collects negative information (e.g., defaults), not positive (e.g., timely payments).
- It does not address third-party hacking or unauthorized access to credit data.
The Reserve Bank of Malawi is encouraged to issue directives to support the bureau's functioning, ensuring customer consent and supervision.

V. Realization of Collateral

Foreclosure requires a 120-day notice, which is excessive and costly.
Debtors often pay off their loans within 30 days, making the 120-day period inefficient.
Public auctions of foreclosed assets involve a 5% commission and are slow, with land transfers taking 2–3 months.
Bills of sale (e.g., in hire purchase) are enforced through ex-parte seizure orders and Sheriff's actions, but the process is not always effective.
Debentures allow for the appointment of receivers with one-week notice, enabling quicker asset recovery.

VI. Judicial Framework

Malawi's judiciary is respected for its independence and competence, but commercial expertise is lacking.
Judges often grant injunctions in favor of debtors, leading to delays in collateral realization.
Foreclosure cases can take up to three years, during which interest accrues and recovery is hindered.
The Commercial Court, established in 2007, aims to address these issues with specialized procedures, mediation, and timely judgments.
However, the Commercial Court faces capacity and infrastructure challenges, including a limited number of judges and manual filing systems.

VII. Insolvency and Corporate Rehabilitation

Malawi’s insolvency and bankruptcy laws are outdated and based on British statutes from the 1930s and 1940s.
The insolvency process is inefficient, with few winding-up cases reported.
Formal workouts and restructuring are rare and ineffective, often leading to liquidation.
Creditors tend to prioritize liquidation over restructuring, undermining business viability.
Informal restructuring is needed, especially for large corporate groups, with guidelines and provisioning incentives from the Reserve Bank of Malawi.

Key Recommendations

Short-term

Reduce the 120-day notice period for foreclosure.
Delegate government consent for leasehold land transactions to subordinate officials.
Increase resources for the Commercial Court, including more judges and support staff.
Enable credit bureaus through Reserve Bank directives.

Medium-term

Cap legal fees under the Legal Practitioners Rules to make them more rational.
Implement training and capacity-building programs for Commercial Court judges and staff.
Legislate credit bureau establishment and functioning.
Introduce informal debt restructuring guidelines through Reserve Bank directives.