Empowering the Poor: Turning De Facto Rights into Collateralized Credit

The shrinking middle class and the widening gap between the rich and the poor constitute significant threats to social and financial stability. One of the main impediments to upward mobility is the inability of economically disadvantaged people to use their property — in which they sometimes hold only de facto, not de jure, rights — as collateral to obtain credit. This Article argues that commercial law should recognize those de facto rights, enabling the poor to borrow to start businesses or otherwise create wealth. Recognition not only would provide benefits that exceed its costs; it also would be consistent with, if not compelled by, the innovative trend of commercial law to disentangle commercial and property law to reflect important commercial realities, rather than the arbitrary shifting of rights based on property

Empowering the Poor: Turning De Facto Rights into Collateralized Credit

The shrinking middle class and the widening gap between the rich and the poor constitute significant threats to social and financial stability. One of the main impediments to upward mobility is the inability of economically disadvantaged people to use their property — in which they sometimes hold only de facto, not de jure, rights — as collateral to obtain credit. This Article argues that commercial law should recognize those de facto rights, enabling the poor to borrow to start businesses or otherwise create wealth. Recognition not only would provide benefits that exceed its costs; it also would be consistent with, if not compelled by, the innovative trend of commercial law to disentangle commercial and property law to reflect important commercial realities, rather than the arbitrary shifting of rights based on property

Financing small and medium-size enterprises with factoring: global growth and its potential in eastern Europe

Factoring is a form of asset-based finance where the credit is extended based on the value of the borrower's accounts receivable. In recent years factoring has experienced phenomenal growth and has become an important source of financing-especially short-term working capital-for small and medium-size enterprises and corporations, reaching a worldwide volume of 760 billion euro in 2003. Although the importance of factoring varies considerably around the world, it occurs in most countries and is growing especially quickly in many developing countries. The authors explore the advantages of factoring over other types of lending for firms in developing economies, and discuss the informational, legal, tax, and regulatory barriers to its growth. They also examine the role of factoring in the eight Eastern European countries that became EU members on May 1, 2004-the Czech Republic, Estonia, Hungary, Latvia, Lithuania, Poland, the Slovak Republic, and Slovenia, referred to as the EU 8. The authors conclude that factoring offers key advantages over other lending products and is likely to become more important in these countries, and suggest policies to accelerate its development.Financial Intermediation,International Terrorism&Counterterrorism,Banking Law,Banks&Banking Reform,Payment Systems&Infrastructure,Banks&Banking Reform,Banking Law,Financial Intermediation,International Terrorism&Counterterrorism,Economic Theory&Research

Credit Creation: Reconciling Legal and Regulatory Incentives

As international organizations adopt new legal standards to promote access to credit through the modernization of national secured transactions law, the lack of coordination with regulatory standards for banking institutions thwarts the effectiveness of these efforts. In recognizing the relevance of the problem, UNCITRAL - for the first time since its establishment - is currently considering how to coordinate secured transactions law reforms with the implementation of the Basel Accord. In a similar vein, the problem is currently approached by other international organisations. Although efforts at the national level to coordinate legal and regulatory standards are commendable, coordination between secured transactions law and capital requirements should be addressed at the highest level of the lawmaking process, i.e. when international soft-laws are defined. To advance this argument, the key functions of secured transactions law and capital requirements are isolated and a holistic understanding of the legal and regulatory rules governing the creation of credit is presented. The Article steers away from the idea that banks are mere intermediaries and offers a fresh understanding of the role of regulatory capital in controlling credit creation, through the management of risk. Within this context, the incentives created by secured transactions law and capital requirements are examined by comparing the capital charges for different credit protections, including credit derivatives and commercial loans to small business. First, it emerges that the implementation of new secured transactions law and the limited ability of security interests in personal property to reduce regulatory capital under the Basel Accords stimulate the creation of credit outside the banking system. Second, to control this phenomenon, the Article shows that it is essential to reconcile the incentive structures created by international legal and regulatory standards

Small Business Fintech Lending: The Need for Comprehensive Regulation

The 28.7 million small businesses in the United States—99% of all American businesses—are the backbone of the American economy. Historically, small businesses relied on community banks for their credit needs. Over the last decade, however, small businesses increasingly have turned to “fintech” lenders—nonbank lenders that are largely unregulated. Nonbank consumer lending is governed by consumer protection statutes, but nonbank small business lending is outside of any clear regulatory framework that would protect borrowers from potentially predatory practices. This Article argues that the optimal regulatory regime is a combination of both state authority over fintech lenders and inclusion of small business borrowers in federal consumer protection statutes

Information Sharing, Lending and Defaults: Cross-Country Evidence

Theory predicts that information sharing among lenders attenuates adverse selection and moral hazard, and can therefore increase lending and reduce default rates. To test these predictions, we construct a new international data set on private credit bureaus and public credit registers. We find that bank lending is higher and proxies for default rates are lower in countries where lenders share information, regardless of the private or public nature of the information sharing mechanism. We also find that public intervention is more likely where private arrangements have not arisen spontaneously and creditor rights are poorly protected.information sharing, credit market, default rate