Covid-19 Emergency Measures Relating to Funding and Claims Recovery
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International Bar Association IBA Banking Law Committee Survey Covid-19 emergency measures relating to funding and claims recovery IBA Banking Law Committee December 2020 International Bar Association 4th Floor, 10 St Bride Street London EC4A 4AD T: +44 (0)20 7842 0090 F: +44 (2)20 7842 0091 [email protected] www.ibanet.org © International Bar Association 2020 Cover image: © Vasin Lee/Shutterstock CONTENTS Introduction 5 Banking Law Committee 7 Country chapters 1. Austria 9 2. Brazil 20 3. Canada 30 4. Chile 35 5. China 37 6. Denmark 40 7. Egypt 43 8. Finland 49 9. France 56 10. Germany 65 11. Ghana 68 12. India 71 13. Ireland 77 COVID-19 EMERGENCY MEASURES RELATING TO FUNDING AND CLAIMS RECOVERY 3 14. Italy 81 15. Japan 89 16. Luxembourg 95 17. The Netherlands 98 18. Nigeria 103 19. Peru 107 20. Poland 110 21. Russia 114 22. Singapore 126 23. South Africa 132 24. Spain 140 25. Sweden 150 26. Switzerland 155 27. Tunisia 160 28. Turkey 163 29. United Kingdom 168 30. United States 173 4 IBA Banking Law Committee Introduction This survey provides a summary of key Covid-19 emergency measures affecting funding and claims recovery across 30 selected jurisdictions from Africa, the Americas, Asia and Europe.1 It is structured under a standard grid of questions around four themes: • Emergency funding through state-guaranteed loans and sectorial support; • relaxation of regulatory requirements for lenders; • stay/rescheduling of statutory time periods and of contractual obligations; • temporary changes to insolvency and work-outs frameworks. Answers are generally up to date as of 15 September 2020 (completion date is mentioned alongside each contribution). They do not report any measures adopted in connection with the Covid-19 ‘second wave’. It is contemplated that this survey will be updated in the spring of 2021. Key takeaways All surveyed countries have implemented an array of emergency measures to protect private companies’ operations as a going concern, and compensate companies and consumers in sectors affected by lockdown measures. Differences in scope and intensity reflect local economic factors, the health crisis timeframe, and the political and legal culture mix. Covid-19 emergency schemes have been adopted and are implemented at national levels only (and often at state or province level in federalised countries). In European Union (EU) countries, funding measures have been cleared by the EU Commission under EU regulation on state aids. In all cases, surveyed countries have put in place funding and guarantee schemes benefiting private companies. Many countries have also adopted specific mandatory legislation setting forth temporary freezes of statutory time periods and/or contractual remedies, as well as opening triggers of insolvency proceedings during the Covid-19 protected time periods. A large group of countries has not done so, or only done so in a very limited way, leaving those matters to the play of existing legal mechanisms or soft law recommendations. 1 Africa: Egypt, Ghana, Nigeria, South Africa, Tunisia America: Brazil, Canada, Chile, Peru, United States Asia: China, India, Japan, Singapore Europe and Middle East: Austria, Denmark, Finland, France, Finland, Germany, Ireland, Italy, Luxembourg, the Netherlands, Poland, Russia, Spain, Sweden, Switzerland, Turkey, United Kingdom COVID-19 EMERGENCY MEASURES RELATING TO FUNDING AND CLAIMS RECOVERY 5 Emergency funding takes the form of guaranteed loans by states, with guarantees ranging from 50 to 90 per cent of the loan, state-owned funds or funding by central banks or credit insurance companies. In a few cases, the guarantee can reach 100 per cent of the loan amount (India) or apply to debt instruments (Germany). Emergency funding also comprises specific programmes reserved for SMEs, export financing guarantees, guarantees to receivables factoring programmes and non-repayable grants, and other financial assistance to specific sectors having strategic importance in the domestic economy or severely affected by lockdown measures such as art, culture and aeronautic industries. In the majority of surveyed countries, eligibility for emergency funding requires evidence that beneficiary was not in financial difficulty at the start of the health crisis, aiming to limit the risk of financially assisting zombie companies or creating windful opportunities; only a few jurisdictions have eligibility requirements for emergency funding taken into account green economy criteria; While all programmes being funded at country level are generally reserved for companies participating in the economic activity of the country, the granularity of the territorial scope of those measures varies. Certain countries dedicate guaranteed funding to companies established in the country only; others also cover foreign borrowers having domestic operations. In no case have cross-border issues affecting conflicts among national schemes been reported. Nonetheless, such issues may appear in the case of international corporate groups benefiting from state-guaranteed loans at various group company levels in several jurisdictions in respect of priority rights, upstreaming revenues and cross guarantees. Most surveyed countries have temporarily relaxed regulatory capital obligations applicable to banks to facilitate massive distribution of emergency guaranteed facilities by commercial banks. In EU countries, such includes collateral easing tools by the European Central Bank, and legislative and non-legislative moratoria on loan payments issued by the European Banking Authority (EBA). Temporarily freezes of statutory time limits have been adopted in a substantial number of jurisdictions, as have freezes of contractual penalties/remedies. However, in several cases, these are subject to first application of contract law mechanisms. Measures freezing insolvency proceedings opening triggers (or at least temporarily removing the obligation to file for insolvency) tend to draw a general line between European countries, where statutory protective frameworks have been enacted in hard law, and countries from other regions in the World, which have not or only very lightly legislated on those matters. We hope you will find this survey useful both as a source of reference in your financial operations and in academic studies. Please do not hesitate to promote it further and contact contributors for additional information you may need in a particular jurisdiction. Jean-François Adelle Klaus Löber Partner, Jeantet AARPI, Paris Head of Oversight, European Central Bank, Frankfurt IBA Banking Law Committee Vice-Chair (2020-21) IBA Banking Law Committee Co-Chair (2021-22) [email protected] [email protected] 6 IBA Banking Law Committee Banking Law Committee The Banking Law Committee provides a worldwide forum for banking lawyers and other legal professionals within the banking community to address all sorts of practical and legal issues arising in commercial and regulatory activities in this context. The Committee has held one of the IBA’s most popular and well-established events, the International Financial Law Conference, every year since 1984. Additionally, the Banking Law Committee works with the Capital Markets Forum, Insurance, Investment Funds and Securities Law committees to form the Financial Services Section. COVID-19 EMERGENCY MEASURES RELATING TO FUNDING AND CLAIMS RECOVERY 7 8 IBA Banking Law Committee 1. Austria Thomas Schirmer, Gottfried Gassner, Stephan Heckenthaler, Johannes Barbist, Binder Grösswang, [email protected] Completion date: 02 October 2020 Emergency funding State-guaranteed loans Jurisdiction Programme Size of Conditions of funding Eligible borrowers Terms of loans Territorial scope/ programme cross-border issues Austria2 Hardship fund (Härtefallfonds) €2bn Business must be affected by an Types of eligible companies: Non-refundable grants: No receipt of cash economically significant threat from • Single member entities (Ein-Personen- • Phase 1: payments/grants Covid-19: Unternehmen, EPU); – Emergency aid by municipali-ties • No cover of running costs; • Freelance employees; – Grants in the amount of €500 to €1,000; in connection with • Officially ordered ban on access • Micro-enterprises (as defined in Commission • Phase 2 Covid-19, except due to Covid-19; Recommendation 2003/361/EC, 06. May 2003). ○ Divided into nine review periods (16 March for funding through • Revenue recognition of at least 2020–15 December 2020): corona short work, 50 per cent compared to the Operational conditions: ▪ Partial compensation for loss of net income from corona family hardness comparative period of the ○ Self-employed operation of a business activity self-employment: minimum €500 to maximum compensation (Corona- previous year. in its own name and on its own account or self- €2.000 Familienhärteausgleich. employment of a liberal profession; ▪ Comeback bonus: €500 lump sum. and federal guarantee. ○ Business activity in Austria; ○ Total/maximum: No ‘undertakings in difficulty’ (as defined in ▪ Grants only for six of the nine review periods Commission Regulation 2014/651/EC, 17 June 2014). ▪ Partial compensation for loss of net income from self-employment: €12,000 Excluded: ▪ Comeback bonus: €3.000 ○ Non-profit organisations; ▪ Grants from phase 1 are credited ○ Companies regarding income from agriculture and forestry; Assessment basis: net loss of income based on income ○ Companies regarding private room rental with tax assessment. maximum 10 beds; ○ Institutions of public law. Tax exemption.