中英文外文文献翻译企业债务重组研究

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作者: Martin G

期刊: Economic Analysis , 2016，第3卷，第5期，pp：31-41

原文 The research of corporate debt restructuring

作者：Martin G

I. INTRODUCTION

The global financial crisis that paved its way into India in 2008 and

2009 shattered the financial health of the companies affected by a

tightening of credit and weaker consumer demand. The non-performing

assets (‘NPAs’) for banks were on the rise. The cases filed in the

corporate debt restructuring cell (‘CDR Cell’) increased at a rapid pace.

By the end of March 2009, thirty-four cases were filed with the CDR Cell

as against the 10 filed at the end of the previous year. These cases were

mainly from the textile and steel sectors that suffered highly because of a

lag in exports. It went to show that companies were unable to deal with

the high level of debt they had accumulated over time and such cases

were an inevitable result of the same. Fortunately the Reserve Bank

already had a mechanism in place and that too easily accessible, whatever

the effectiveness of it, for handling such a crisis. It was way early in 2001

that the Reserve Bank had developed or rather adopted guidelines for

debt restructuring by corporate entities and the same were revised twice

subsequently to overcome the insufficiency of the insolvency laws to

address debt distress. Therefore, when it occurred to the companies that

their debt structure was in a predicament, the Reserve Bank early move

had put in place a mechanism that these distressed companies could look

forward to in order to avoid a liquidation since their current situation was

but a reaction to the global financial crisis. The various facets of this

mechanism need to be understood to appreciate the debt restructuring of

corporate in India.

II. CORPORATE DEBT RESTRUCTURING: A GLANCE It was in

light of this that the Reserve Bank of India came up with the Corporate

Debt Restructuring model in August 2001 providing detailed guidelines

for establishing the corporate debt restructuring system. The present

framework is provided by a November 2005 circular of the RBI. The

model for corporate debt restructuring essentially has two elements-

factual and legal. RBI is the regulatory body for most of the financial

institutions and all banks. Also, the central government is either the sole

or majority shareholder in most of them. As the regulatory agency (with

the backing of the majority/sole owner), the RBI can prod such financial

institutions to become involved in the corporate debt restructuring

exercise. Those financial institutions which are not regulated by the RBI,

e.g. Life Insurance Corporation of India, General Insurance Corporation

of India and its subsidiaries, Unit Trust of India but are important players,

are allowed to join either on individual case to case basis or become

general members. Thereafter the members are bound together by the

Inter-Corporate Contractual Agreement entered into by the members. So

the legal foundation of the agreement rests on the basis of Inter-Corporate

Contractual Agreement, which has come about because RBI regulates the

entities which are signatories to it. In fact up to 2005, RBI was a member

of the Corporate Debt Restructuring Standing Forum and oversaw some

of the most important corporate debt restructuring cases and enabled and

establishment of precedents for guidance in future cases. A.

STRUCTURE OF THE CORPORATE DEBT RESTRUCTURING

MECHANISM

The corporate debt restructuring mechanism system has a three-tier

structure. At the top is the Corporate Debt Restructuring Standing Forum

and its Core Group. At the second layer is the corporate debt restructuring

Empowered Group and thereafter we have the Corporate Debt

Restructuring Cell. The Corporate Debt Restructuring Forum has as its

permanent members Chairmen and Managing Directors of all banks,

financial institutions such as the Industrial Development Bank of India,

Industrial Finance Corporation of India and Chairman of Indian Bank

Association. The Life Insurance Corporation of India & Unit Trust of

India can also participate in it. As the very structure and representative

character of the Standing Forum suggests, this body is there essentially to

lay down the policies and guidelines as to how the system of corporate

debt restructuring should operate and thereafter review and monitor the

programme. As a policy making body it lays down the important

parameters to be taken into account in minimum level

of promoter sacrifice, maximum period to be taken into account for a unit

to become viable, which complicated cases should get special treatment,

etc. The guidelines are also supposed to address the modalities for

enforcement of the corporate debt restructuring mechanism, the time

frame within which it should be done and as to how to deal with the

operational difficulties which might be experienced in the functioning of

the Empowered Group. One important area of concern of the guidelines is

ensuring that over optimistic projections (e.g. of capacity utilisation of the

plant, future demand of products, price expected from the sale of

products , margin of profit in operations, raw material availability,

comparative national and international competitiveness) are not assumed

while preparing or approving the restructuring proposals. While the

Corporate Debt Restructuring Standing Forum has to ensure the smooth

functioning of the Empowered Group and Corporate Debt Restructuring

Cell, there is a Core Group to guide and assist it in taking decisions

relating to policy. The Core Group consists of Chief Executives of the

financial institutions that have the greatest bearing on decision making

because they are the biggest lenders and are associated with most of the

big loans (Industrial Development Bank of India, State Bank of India,

ICICI Bank Ltd., Bank of Baroda, Bank of India, Punjab National Bank

and Chairman and Vice Chairman of Indian Banks Association). It is

hoped that their wide-spread exposure would help in formulation of

standards which will have a common thread through them. The next layer

is the Corporate Debt Restructuring Empowered Group which finally

decided on the specific cases of corporate debt restructuring as per the

guidelines of the Corporate Debt Restructuring Standing Forum. Since its

work consists of looking into specific individual cases, the composition

of the Corporate Debt Restructuring Empowered Group will first of all

have to necessarily reflect the lenders of the troubled debtor. It consists of

executive director level representatives of financial institutions and banks

which have an exposure to the debtor. The high level of representation is

there so that they can take decisions on behalf of their financial

institution/banks. The RBI Circular issued in November 2005 also

requires that the concerned creditor should authorize its chief executive

officer and /or executive director to decide on the restructuring packages.

In addition, so as to maintain a continuity in the discussion/decision

making process and also speed it up, the same person is required to

represent the creditor in the Corporate Debt Restructuring Empowered

Group meetings. For guidance of the creditors the Corporate Debt

Restructuring Empowered Group also consists of representatives

(executive level) of Industrial Development Bank of India, ICICI Bank

and State Bank of India as they bring their experience in corporate debt

restructuring proposals and because most of the proposals generally

involve them.

The Corporate Debt Restructuring Empowered Group first of all

looks into the preliminary reports of are quest for restructuring submitted

to it by the Corporate Debt Restructuring Cell. Only after it ascertains

that the restructuring its prima facie feasible and the enterprise has the

potential to become viable as per policies and guidelines of the Corporate

Debt Restructuring Standing Forum, will a detailed restructuring package

be worked out by the Corporate Debt Restructuring Cell with the help of

the lead institution (usually the major creditor to the enterprise). When

the restructuring package is submitted to the Corporate Debt

Restructuring Empowered Group, it will after examining the viability and

chances of rehabilitation of the enterprise decide on the package within a

time span of ninety days of reference to Corporate Debt Restructuring

Cell. IN some cases, for sufficient reasons, the time span may be

extended to 180 days. To decide on whether the time span should be

increased or not, the Corporate Debt Restructuring Empowered Group

will have to take into account certain parameters, applied individually

taking into account each enterprises’ circumstances and peculiarities. The

Corporate Debt Restructuring Empowered Group while deciding on the

viability of restructuring has to take into account parameters like the

return on capital employed, debt service coverage ratio, gap between

internal rate of return and cost of fund and the extent of sacrifice entailed

and proposed. The decision of the Corporate Debt Restructuring

Empowered Group will be final and shall be taken on the basis of

exposure. So those who are secured or unsecured creditors, or who have

provided term loan or working capital finance are on the same footing.

Seventy five percent of creditors by value and 60 percent of them by

number have to vote in favour of the restructuring for it to pass. The

Corporate Debt Restructuring Cell is the first step in the restructuring

exercise. It has staff on deputation from participating banks and financial

institutions, but there is no prohibition on taking outside professional help.

The costs are met by contributions by members of the Corporate Debt

Restructuring Empowered Group, which within one month to be feasible,

then the Corporate Debt Restructuring Cell, and the lead institution or

major creditor to the enterprise will work out a plan within 30 days with

the help of other creditors and experts. It is based on this proposal that the

final decision is taken by Empowered Group. B. OPERATION OF THE

CORPORATE DEBT RESTRUCTURING MECHANISM

The benefit of this mechanism is not available to those cases where

there is only one creditor bank or financial institution. This is because the

concerned creditor can in any case enter into a compromise with the

defaulter and there is no need to bind the other creditors to the

arrangement. Thereafter, it is at present applicable only to those cases

where the exposure of banks and financial institutions is more than INR

100,000,000. The reason being that it is these cases which present a threat

to the financial system and also the costs involved in working out the

package and it implementation be justified. Cases which are with the

Board for Industrial and Financial Reconstruction are not eligible to be

considered under the system, so as to prevent conflict with the Board for

Industrial and Financial Reconstruction, which also deals with the case on

the basis by and large. But the Core Group can recommend exceptional

large value corporate debt restructuring cases for consideration on a case

to case basis though the package can be implemented only after getting

approval of the Board for Industrial and Financial Reconstruction. Those

corporate, which had in the past been found to be indulging in fraud or

malfeasance, even if only with one bank or financial institutions, are not

eligible to be considered. The operation of the system involves the

creditor waiving off his rights so as to enable repayment for an entity

which is finding it difficult to repay due to genuine reasons. The system

should not operate in a manner so that it creates a moral hazard of

deliberate default so as to get concessions from creditors. The Core

Group, however, can relax in those cases where it is satisfied that the

concerned debtor was classified as a willful defaulter, in a

non-transparent manner and he can repay the loan if he is given an

opportunity under the corporate debt restructuring system. But it is worth

noting that there is no necessity that the company be sick or be in default

or an account be a non-permanent asset for reference to the corporate debt

restructuring system. In addition to contractually binding them to the

future restructuring proposal upon their approaching the system, with

necessary enforcement and penal clauses, the debtor-creditor agreement

also has a stand still clause which is binding for 90 days or 180 days as

the case may be, on both the parties. The stand still clause prevents the

parties from taking recourse to any legal action (other than criminal

action) during the said period so that restructuring exercise takes place

without any outside intervention. The directors of the referred company

are not supposed to resign from the board of directors during this period

and the debtor also agrees that the period of limitation on all relevant

matters and documents is extended by the duration of the period.

S RESTRUCTURING OPTIONS/METHODS EMPLOYED

IN CORPORATE DEBT RESTRUCTURING SYSTEM

The corporate debt restructuring system has three different aspects

promoter sacrifice, creditor sacrifice and creditor’s assistance.

The system requires the creditors to forsake some of their rights and

money. But before this is done or is agreeable to them, the concerned

promoter of the company (who are the final beneficiaries) and

shareholders are required to sacrifice as well. The various Sacrifices are

in the form of reduction in share capital, changing the composition of the

share capital from pure equity to equity and preference with the latter

being redeemable at a long date (under 20 years) with only a notional

divided (.01 per cent) being paid on them, conversion of debt due from

company to the promoter as equity or preference share, bringing in of

additional capital by the promoter or merging the company with an

another healthy profit making company controlled by the promoter. The

methods of extricating sacrifice from the promoter enumerated here are

not exhaustive. But from the sacrifice entailed from the promoters, what

is analysed is whether the promoters are keen and interested in revival of

the unit as the creditors or whether the promoters are more free riders.

The sacrifice also ensures that the moral hazard of indifferent/bad

managements being rewarded with better and more lenient deals due to

the operation of the corporate debt restructuring system is taken care of.

译文企业债务重组研究

Martin G

I.引言全球金融危机在2008年和2009年波及印度，信贷紧缩和消费需求疲软打破了当地公司的财务状况。银行不良资产(‘NPAs’)不断上升。企业债务重组细胞(CDR细胞)的案件迅速增加。到2009年3月底,企业债务重组细胞涉及34例，与上一年度的10例形成了对比。这些案例主要来自由于出口高度滞后的纺织和钢铁行业。它表明, 随着时间的推移，公司无法处理高程度的债务积累,在这种情况下不可避免的是出现的结果都是相同的。幸运的是,央行已经有了一个完整的机制,无论它的有效性如何,都可以用来处理这样的危机。早在2001年,央行已经开发或而采用企业实体债务重组准则，相同的两次修订克服还不足以解决债务危机。因此,当公司债务结构陷入困境后,央行会将这些机制落实到位,这些陷入困境的公司可以期待免于清算,虽然他们的现状如此,但能应对全球金融危机。在印度企业的债务重组中，这种机制的各个方面都需要得到理解和重视。 II.企业债务重

组：匆匆一瞥

根据印度央行在2001年8月提出的企业债务重组模型，它为建立企业债务重组系统提供了详细的指导方针。目前的框架是由印度央行于2005年11月提出。企业债务重组的模型本质上包含两个元素——事实和法律。印度央行是金融机构和银行最重要的监管机构。同时,中央政府中的大多数是唯一的或多数股东。

作为监管机构(大多数/唯一拥有人的支持),印度央行可以促使金融机构参与企业的债务重组活动。那些不是由印度中央银行监管的金融机构,例如印度人寿保险公司、印度保险总公司及其分支机构、印度单位信托基金公司除了重要的参与者,都被允许加入个别案件或成为普通会员。此后的协同成员会成为内部公司合同协议的成员。因此，协议的法律基础取决于内部公司合同协议,其产生的原因是央行监管的实体。事实上一直到2005年,印度央行就是企业债务重组站论坛的成员之一，并监督一些最重要企业债务重组案例，为未来提供指导先例。 A．企业债务重组机制的结构

企业债务重组机制体系包含三层结构。其中最高一层是企业债务重组站论坛及其核心小组。第二层是企业债务重组授权组,之后是企业债务重组细胞。企业债务重组论坛包括作为常任理事国主席所有银行的董事长,比如印度工业发展银行印度的产业金融公司和印度银行协会主席等金融机构。印度人寿保险公司和印度单位信托基金公司也可以参与其中。正如论坛结构与代表人物所暗示的那样,它在本质上

是一种政策，为企业债务重组系统应该如何运作和此后的审查和监测计划提供指导方针。该指南也应当解决企业债务重组形式的强制执行机制,在其时间范围应该做什么以及应对授权组的操作困难。指导方针的一个重要关注领域是确保过于乐观的预测(例如工厂的设备利用率、未来的产品需求、销售产品的预期价格、营运利润率、原材料可用性、国内和国际竞争力的比较)并不是假设的准备或批准重组建议。虽然企业债务重组站论坛必须确保授权组和企业债务重组细胞的顺利运转,同时存在一个核心小组指导和协助有关政策的决策。核心小组由金融机构的首席执行官组成，其对最高决策起着决定性的作用，因为他们是最大的银行并与大额贷款有着密切联系(印度工业发展银行、印度国家银行、印度工业信贷投资银行、巴罗达银行,银行印度、旁遮普国家银行和印度银行协会的主席和副主席)。人们希望他们的广泛接触有助于标准的制定。接下来一层是企业债务重组授权集团，他能根据企业债务重组论坛的指导方针最终决定特定情况下企业债务重组的具体情况。他的工作包括调查具体的个案,企业债务重组授权集团必须首先代表陷入困境的债务人。它由代表金融级别机构和银行的债务人执行董事。有了高水平的代表,他们就可以代表金融机构/银行作出决定。印度央行在2005年11月发布公告，要求有关债权人应授权于首席执行官和/或执行董事决定重组方案。此外,为了保持连续性的讨论/决策过程和速度,同一个人需要在企业债务重组授权组会议代表债权人。指导企业债务重组授权组织的债权人还包括印度工业发展银行的代表(主管级),印度工业信贷投资银行和印度国家银行,因

为他们为企业债务重组提供了经验与建议。企业债务重组授权组织首先需要调查企业债务重组细胞提交的初步报告。只有在确定重组初步可行与企业潜在可行的债务重组政策和指导方针后, 企业债务重组细胞(通常是企业的主要债权人)才能在领导机构的帮助下制定详细的重组方案。将重组计划提交给企业债务重组授权组织时,它将审查企业的生存能力和机会。在某些情况下,有足够的理由将时间跨度延长到180天。决定是否应该增加时间,企业债务重组授权组织不得不考虑某些参数,分别考虑每个企业的情况和特点。企业债务重组授权组织在决定重组时虽然考虑了可行性参数,如已投资资本回报率、债务偿付比率、内部收益率和基金成本的差距。企业债务重组授权组织的决定最终会建立自曝光的基础上。所以那些担保或无担保债权人,或提供定期贷款或营运资本融资的人地位相同。75%债权人的价值和他们中的60%需投票支持重组。

企业债务重组细胞是执行充足的第一步。它有来自银行和金融机构的员工代表,但没有禁止带外专业的帮助。其成本由企业债务重组授权组织的成员来承担,在一个月之内都是可行的,那么企业债务重组细胞、领导机构或企业的主要债权人将在其他债权人和专家的帮助下制定一个计划。这个提议最后的决定权还是授权组织。

B．企业债务重组机制的运营

这种机制的好处在只有一个债权银行或金融机构的情况下是不可行的。这是因为，有关债权人可以在任何情况下与缺席者达成和解，而

且没有必要约束其他债权人做决定。之后,它目前只适用于对超过100,000,000卢比的银行和金融机构的曝光。原因是在这样的情况下，它能威胁到金融体系以及涉及参与制定计划的成本,它的实现是合理的。例如董事会的工业和金融重建在这个系统中被视为是不合格的,以便防止工业和金融重建中与董事会的冲突。但核心小组可以在工业和金融重建得到批准的情况下，在考虑价值的基础上推荐特殊大型企业的债务重组。这些企业,在过去被发现存在欺诈和渎职行为,即使只有一个银行或金融机构,也不符合规定。系统的操作包括，债权人放弃了权利,以便实体有能力偿还即偿还能力还是根本原因。系统在某种情况下不应当进行操作,以便为了获得债权人的让步而创建一个故意违约的道德风险。然而,核心组可以在这些情况下得到放松,即关债务人被认为是故意不履行者，如果在企业债务重组系统中能得到一个机会，他便可以以一个不透明的方式偿还贷款。但值得注意的是,对企业债务重组系统来说，公司经营不畅与违约或一个帐户是一个非永久性资产是毫无必要的。除了不能随意约束未来的重组方案,提供执法和惩罚性条款、债权债务协议是必要的。这一条款阻止当事人采取任何法律行动(除了刑事诉讼)来获得求助,以便企业的重组活动不会受到任何外来干预。在此期间，公司的董事们不应该辞职，债务人也应当同意延长所有相关事宜和文件的时间期限。 III. 应用于企业债务重组系统的各种重组选项/方法企业债务重组系统大致有三个不同的方面即发起人牺牲、债权人牺牲和债权人的援助。企业债务重组系统要求债权人放弃他们的一些权利和金钱。但在这样做之前或对他们

来说也是可接受的,公司的相关发起人(谁是最终的受益者)和股东同样也需要作出牺牲。各种类别的牺牲以减少股本的形式表现出来,股份资本的构成变化从纯股本到股东权，后者是可通过长期(不到20年的时间)赎回的,转换的债务从公司到股票或优先股的发起人, 由发起人或另一个健康盈利公司公司控制的发起人引入追加资本。由于考虑企业债务重组的操作系统，这一牺牲也保证了无关紧要的/糟糕的管理获得更好、更宽松的交易。