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 6) by Steven Gilyeart, Editor, The International Leasing Resource 21 March 1999. Please Note: This article is the sixth and final article in a series.
The Regulatory/Supervisory Process Leasing regulation/supervision generally involves a three-part process: 1. Reports 2. Review and Audit 3. Penalties Implicit in this process is a comparison to a minimum set of standards, known as prudential norms. As the standard of measurement, they will be discussed first.
Prudential Norms Relevant to Leasing There are only five principal prudential norms relevant to the supervision of leasing activity: 1. Minimum Capital 2. Single Customer Exposure 3. Insider Transactions 4. Provisioning/Reserves 5. Gearing/Leverage A sixth one common to banks, a liquidity requirement, is unnecessary for reasons that will be discussed.
Minimum Capital Whether arising from the country's companies act or a leasing-specific central bank regulation, there will always be a minimum capital requirement. If a traditional banking license is required for leasing, the minimum capital requirement will be the same as it would be to start a bank. This amount is usually measured in millions of dollars (US equivalent) and is often higher for a foreign entity seeking to enter the domestic market. Needless to say, this will present a significant barrier to the start of a leasing business. If leasing is unregulated and only a standard companies act charter is required, the minimum capital required is the same as for any standard company, often an extremely small amount. In this case, there is effectively no capital barrier to entry. If leasing is considered an NBFI activity, the capital requirements for an NBFI will have to meet. This capital level is almost always less than a bank's, but is usually not trivial. There will also usually be different capital levels required for different types of NBFI's. In other words, an insurance company would have one minimum, a merchant bank another, and a finance company a different one yet. In this environment, leasing companies will have their own, usually at the lower end of the NBFI scale, but significantly above the companies act base.
Single Customer Exposure Limitations on the number of leases to a single customer, including the customers related business enterprises, is often set at nearly the same percentage as the general banking rule. Since this rule is designed to preclude a concentration of credit exposure, the credit risk exposure remains the same in both the banking environment and the leasing environment, when leases are just the functional equivalent of loans,,i.e., when leases are just simple finance leases. As the nature of lease products mature and asset risk enters the picture through the retention of a residual interest by the lessor, a loosening of the single customer exposure rule is justified. Of course, a concern about asset risk concentration may now arise. Yet, as the industry moves from being credit based to asset based, the need for regulation itself declines. Percentage limitations on single customer exposures vary widely, from a conservative 10% to a liberal 50%. The mean would be around the middle, 20-30%. It should also be noted that a special bank single customer exposure rule (different from the general single customer exposure rule) may be needed for bank lending activity to its own leasing subsidiary or affiliate because of the special relationship they share.
Insider Transactions Insider transactions refer to leases to the management of the lease company, or more relevantly, to companies owned or effectively controlled by the members of the lease company management team. If lease companies are allowed to take public deposits, the concerns in this regard are the same as for the banking community and the prudential norm is usually at a substantially similar percentage, often around 10-20%. However, if leasing companies are not allowed to take public deposits, and particularly if they are funded from private investment capital rather than publicly-raised capital, the risk of abuse or misappropriation of other people's money is reduced, and restraint on insider transactions should be lightened.
Provisioning and Reserves All businesses have a potential for suffering losses, and all prudent businesses "provision" for them or create a reserve fund so that when they occur, there is less disruption to current operations. In the financial sector, provisioning is mandated by regulation. Provisioning requirements for banks can be quite stringent. If unexpected losses occur, banks may not have sufficient funds on hand to meet the deposit withdrawal needs of their customer base. A denial of a legitimate withdrawal request because of inadequate liquid funds is the time-proven way to generate a bank panic or a potential collapse of the whole banking system. This nightmare is just what provisioning requirements seek to avoid. If lease companies do not take public deposits, a "run on deposits" is not possible. Provisioning in this circumstance is no different than the generally prudent business practice of creating a reserve for losses. It need not be as rigorous as the requirement for banks. A related bank prudential norm that usually is not imposed on lease companies is a liquidity requirement. Though related to provisioning, it has a different focus. While provisioning operates to create an asset base of reserves available to meet losses, a liquidity rule goes to a need to have those assets readily available in cash, specifically so that depositor withdrawal requests can be immediately met. If there are no depositors of a lease company, there is no need for a prudential norm on liquidity. Of course, this would not be the case if lease companies are allowed to take public deposits.
Gearing and Leverage Gearing, also known as leverage in the United States, refers to a companies' debt-to-equity ratio. In mature markets, like the United States, respectable leasing companies will often operate at average gearing of 7 to 1. In fast growing emerging markets, this may be at 10-1 or even 15-1. On the other hand, some emerging markets may operate at a very conservative 3 or 4-1. History would seem to favor gearing below 10-1 as prudent.
Reports Inherent in any regulatory structure is the necessity that the regulated provide information to the regulators. In the case of leasing, this would be specific information showing compliance with the prudential norms imposed, along with more general financial information indicative of how the business is doing. Usually, this means profit and loss statements, balance sheets, and related financial statement information. Interim reports (e.g., monthly, quarterly) are usually unaudited compilations but the annual filing may have to be auditor certified. These reports are usually just reviewed within the offices of the supervising agency. Field audits may be authorized by the regulations but are only occasionally conducted, often due to budget constraints, a lack of auditor familiarity with leasing, and the more pressing demands of better-understood matters. Yet, rumors, reports or information of substantial irregularities would almost always generate regulator scrutiny.
Penalties For any regulatory scheme to have effectiveness, it must have penalties for non-compliance with the rules. Common enforcement measures include the ability to: a. issue written warnings; b. issue an order requiring remedial action to be taken within a certain time; c. stop or limit certain activities; d. impose fines; and e. suspend temporarily or revoke the license. Obviously, the two most significant penalties are suspension of the business license or its outright cancellation. Parities feeling aggrieved by the regulators actions usually have to take their appeal to the local courts.
Monetary Policy and Leasing Regulation Because leasing involves the extension of credit, it has the ability in the classic economic sense "to create money." Leasing activity will also affect the "velocity of money" within the financial system. Consequently, leasing can find itself impacted by the macro-monetary policies of the government. This can go beyond the generalized effect of interest rate changes made by the central bank at its discount window. Because leasing regulated as part of the financial system is within the control of the regulators, more direct market intervention and management tools are available to them, such as credit moratoriums, credit ceilings, interest rate controls, foreign exchange rule manipulations and the like. Lessors may find their ability to write new business on hold from time to time.
Integration of a Domestic Leasing Market Into the Global Economy In our global marketplace, not only are companies competing with one another for business, but countries are also competing with one another for business. Everything else being equal (which of course it never is), a country with a burdensome regulatory scheme will be disfavoured over one without such a handicap. In an emerging market though, the complete absence of "the ground rules" may be the more severe detriment, while a reasonable, well-thought-out regulatory structure may actually help. The challenge is to find that happy medium where a leasing industry can take hold, grow and prosper.
Updated 21 March 1999