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Saving Our Corporates

When a person has a serious health problem, he or she sees a doctor. Family members gather in support and every effort is made to save a life. But when one of Hong Kong's corporate entities gets into serious financial trouble, it is left to struggle pretty much on its own, waiting for the creditors to move in for the merciless kill.

As such, labour unions seem to have forgotten that their main role is to save jobs. Instead they have indulged in regularly advising workers to petition for involuntary windings-up so that workers can get their hands on the fat pockets of the Protection of Wages on Insolvency Fund (PWIF) - despite the possible delays and the limitations inherent in this compensation.

It would be fair to say that nobody cares about the demise of a corporate person. In the corporate world, where only the fittest survive, the focus is clearly on tearing off the last ounce of flesh before a company goes under. This is not, however, the way it has to be, albeit that Hong Kong's insolvency legislation is antiquated. We can and should use our accountants as corporate doctors in helping to implement corporate rescues, a role that is often grossly misunderstood and its value vastly underestimated.

From the outset of the financial turmoil early last year, I have been appealing to the Government to review urgently its insolvency legislation to help businesses save jobs. But, despite having lobbied for this since 1998, the Government has done far too little, far too late. At present, Hong Kong's regime only provides winding-up procedures for companies in financial difficulty, resulting in many long-established businesses, which may have made just one mistake too many (perhaps a bad business investment or a single unfortunate turn of events), being forced to close down.

It is not surprising therefore that, in the attempt to defer this 'capital punishment', many businesses have tried to cover up their problems rather than deal with them. Of course, a few unscrupulous businesses may actually have chosen to squeeze dry their company's assets leaving bewildered official receivers to clean up the mess.

In many developed countries such as the US and Australia, corporate rescue frameworks have been developed to supplement insolvency legislation. In simple terms, companies are given time off (i.e. a moratorium) from having to repay their debts. Also, new investors who step-in to bail companies out of short-term financial crises may be given preferential treatment in terms of repayments and security on assets.

Companies in these countries often call in professional specialists to help them restructure their businesses, i.e. to salvage any profitable operations and strengthen the management. If these plans succeed, the viable part of the business is saved and job losses are greatly reduced. In the longer term, creditors may even be rewarded with a better pay-off.

This is perhaps the formula originally envisaged by the Law Reform Commission and by the Government in its consultation paper 'Corporate Rescue and the Protection of Wages on Insolvency Fund'. However, the Government's proposals have shied away from taking a clear stance when it comes to tackling workers' wages.

In the present political climate, unionists are vocal and influential. Some may say that they are even enjoying a disproportionate amount of sympathy and support from the media. In light of this, it may be difficult to change the regime given the unique set up of the PWIF, which offers much desired cash relief to workers when a company begins the winding-up process. Any changes to the terms of protection are likely to attract serious and strong political opposition.

In tackling this problem, I do not actually find the unionists to be at all unreasonable. They appear to be flexible enough to consider a proposal to set aside adequate funds from the PWIF to deal with those affected by corporate rescues. However, there is still a genuine fear that corporate rescues are unlikely to revive companies and that, after having paid the necessary fees to provisional supervisors, they will still go under.

Surprising opposition to the pending legislation on corporate rescue has come from the business community. I suspect that some of our politicians with backgrounds in manufacture exporting from the US may have suffered from bad experiences with 'chapter eleven' type operations and that as creditors they found their funds tied up for long periods of time. They are also sceptical as to the success of corporate rescues and the possible professional fees involved.

Despite the lukewarm response from the business community, however, I thought the bankers would be our likely allies. But that anticipated support was not very forthcoming - Hong Kong bankers are very conservative. This is particularly the case when they are suffering from substantial bad debts and are feeling averse to risk.

Hong Kong urgently needs a sound corporate rescue package to save future corporate failures and job losses. But misunderstandings regarding the technicalities of corporate rescue, the lack of positive experiences and, above all, political self-interests have all got in the way of a timely and workable solution.

The Government also lacks courage and leadership in this area. It is a great pity that Hong Kong has lost its chance of doing something positive in times of financial crisis - the Thais and Indonesians have had much more success.

If we are to introduce a desirable and workable corporate rescue package, accountants must stand together to explain to the Government, the business community, trade unionists and the general public that we have the skills to revive companies if it is not left too late; our fees are actually reasonable and good value for money; the kind of corporate rescue package we have in mind is unlikely to allow the moratorium to drag on for more than six months and that it will be under the strict supervision of the court and creditors; and, last but not least, that the protection of workers is our first priority.

If we persist, and the pending legislation passed, there is still a chance that some rudimentary form of corporate rescue package might be ready in time for the next economic crisis.

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