Юридические документы о лизинге.
Проект документов о лизинге учрежден 01-10-1999 ; редакция от 01-11-2001.
Международная лизинговая энциклопедия.
The International Leasing Encyclopedia by Steven Gilyeart.
Энциклопедии не было в интернет последние полтора года, но это не означает, что ее нет вообще. я взял на себя смелость разместить на этом сайте всю подборку статей (собственно энциклопедию), с указанием адресов электронных почт авторов материалов и редактора. Материал на английском языке.
Licensing and Supervision of Leasing Activity (Part 3) by Steven Gilyeart, Editor, The International Leasing Resource 7 February 1999. Please Note: This article is the third in a series.
Who Gets Regulated Authorized Leasing Entities There are basically five types of lessors: 1) banks which engage in leasing directly (i.e., simply as a part of their routine banking business); 2) banks which engage in leasing indirectly (i.e., through a subsidiary or majority-owned affiliate); 3) licensed and/or regulated non-bank financial institutions; 4) regular (and unregulated) companies or other standard business entities; 5) divisions or subsidiaries of manufacturers and suppliers who provide leasing of their own products. These different types of entities present different licensing and supervision issues.
Bank Leasing Activity The first question that must be addressed is whether or not banks can engage in leasing activities, either directly as part or general banking operations or indirectly through a subsidiary. While almost every country allows banks to be in the leasing business, they differ in the method and manner by which such participation is allowed.
Direct Bank Leasing Some countries, including Canada, allow banks to engage in leasing activities as simply another of their traditional banking activities. As such, leasing is viewed as just another financial product. However, there are a number of problems with this approach, including: 1) the creation of an unfair competitive advantage over non-bank lessors; 2) potential bank reporting irregularities; 3) impairment of the development and growth of leasing in the local economy through: a) the unfair competitive funding advantage; b) the inappropriateness of "banking level" prudential norms to leasing activity; c) the complexities of residual risk management, and the threat to banking soundness that the poor management of residual risk might create.
Creation of an Unfair Competitive Advantage Over Non-bank Lessors Because banks are allowed to take public deposits, they will almost always have a lower cost of funds than will a non-bank lessor. The situation is aggravated further by the fact that most of a non-bank lessor's own funding for its lease transactions will come from a traditional bank loan from the very same bank or banks that it is competing against for leasing business. However, the non-bank lessor will have some advantage if it is free from regulation. The bank lessor will always be regulated in all of its activities, including its leasing activities. The full set of prudential norms, regarding single customer exposure, provisioning, gearing and the like, will apply to its leasing activities as well. Yet, this regulatory burden is not enough to "level the playing field" from the supreme advantage that a lower cost of funds provides.
Potential Bank Reporting Irregularities Banks are almost always required to file periodic financial reports (e.g., monthly, quarterly, annually) with the governmental agency responsible for bank supervision. This is usually the central bank. These reports are designed, in the specific details of the items that must be included, to provide the government with a view of the financial soundness of the bank and whether or not the bank is proceeding in business with prudent and reasonable banking practices. As financial leases are generally accounted for as loans, with interest earnings and return of principal, the leasing data may be not be evident as such but simply lumped in with general loan data. On a country-by-country basis, leasing may be more or less risky than traditional lending; yet, regardless, it usually does have a different credit risk profile, and one that will be obscured in typical, generalized bank reporting. Moreover, bank supervisors typically are well versed in the standards of traditional lending practice but are often unfamiliar with those of the leasing business. Even if the leasing data is segregated, which it may not be, the supervisors may not appreciate what they are looking at.
Impairment of the Development and Growth of Leasing in the Local Economy A number of the ways in which direct bank leasing can impair the development of leasing have already been mentioned, such as the unfair competitive funding advantage, the inappropriateness of "banking level" prudential norms to leasing activity, and the complexities of residual risk management and the threat to banking soundness that the poor management of residual risk might create. Additionally, bankers world-wide are well-known to be a conservative lot. They are rarely financial product innovators. If the banking laws allow non-bank entities to engage in the leasing business without licensing and supervision, it will usually be risk-taking entrepreneurs operating through a general company who introduce leasing into the country's economy. Banks come to the party later when they find that they are losing their loan customers to this new-fangled financial tool offered by these financial upstarts, the independent leasing companies. If the initiation of the leasing industry is left to the banking community, it may have a slow start. This is particularly true if the banks enter leasing directly. In such case, there will be no separate company, no separate physical location, and even if bank personnel are assigned exclusively to work on leasing matters, there will a difficulty in creating the separate, entrepreneurial culture that leasing thrives upon. For all of these reasons, it is inadvisable to allow banks to engage in leasing directly.
Indirect Bank Leasing The main reason to require that banks engage in leasing on an indirect basis is to deny them the direct ability to access public deposits for lease transaction funding when non-bank lease companies do not have that advantage. A fairly level playing field is desirable. This also helps to avoid some of the tax, accounting, audit, supervision and control issues that would arise if a commercial bank was also carrying finance leases on its books. Moreover, the failure of a separate leasing company, even if it is bank-owned, does not necessarily create the same public confidence problems that a bank experiencing problems with its leasing portfolio would encounter. If a bank is required to operate its leasing business through a subsidiary or majority-owned affiliate, the competitive environment amongst lessors will be enhanced, the segregation of reporting data will provide a clearer picture, and an opportunity will be provided for the more entrepreneurial "leasing culture" to take hold. There will still be the natural tendency for the parent bank to provide more generous funding terms to its related entity than to other entities, but excesses in that regard can be managed by the standard banking prudential norms as necessary, particularly the norms respecting single customer exposure and insider transactions. The end-result can still be, and should be, to disallow the affiliated lease company from effective access to the lower cost deposits that the bank is receiving from the public. With these proper controls, there is no legitimate reason to not allow indirect bank leasing activity.
Click here for the next artilce in this series
Updated 11 February 1999