Читать книгу Retos y desafíos de las garantías reales - Abel B. Veiga Copo - Страница 58

Differentiating all types of debtors and all types of loans, does it matter whether a secured or an unsecured loan is enforced? Do banks find a better legal environment in individual than in collective enforcement? The Member States’ answers show a remarkable pattern aggregated at the level of the European Union. Banks find the most advantageous enforcement environments for secured and unsecured claims in insolvency proceedings. There is little variation in terms of type of debt (secured or unsecured). What rather matters is that enforcement takes place in a collective insolvency proceeding. Focussing instead on the type of debt, the worst situation for all kinds of debtors is, by far, the individual enforcement of an unsecured loan. Average values are achieved for the individual enforcement of a secured claim. Here, a moderate enforcement environment is available in the European Union, with a slight drop below 0.5 for enforcement against consumers.

Chart 2: Average value of “Yes”/“No” answers by type of debtor, type of loan and type of procedure:

As with types of debtors, the starting point for the enforcement of secured and unsecured loans should be equality. Secured and unsecured loans are intrinsically different, of course. The distinguishing feature is the availability of security to support the satisfaction of the secured lender. Both types of loans should find equal support in terms of enforcement by banks. This requires reflecting the different nature of secured and unsecured loans on the on hand, but not introducing unrelated differences at the level of enforcement on the other hand. Otherwise, the legal enforcement frameworks risk distorting the bargain between bank and borrower. Such distortion will eventually lead to banks preferring those types of loans that are preferred in enforcement. Put differently, if enforcement of unsecured loans is more attractive than enforcement of secured loans –in ways not connected to the intrinsic nature of the presence of security (or the lack thereof)– then unsecured loans will be offered at a lower cost to the borrowers and secured loans will only be available at a higher cost. This is disadvantageous, as the cost of debt finance should be informed by the negotiation between the parties and not the differences in enforcement frameworks.

Spreads as evidenced in Chart 2 above as regards the support of loan enforcement are undesirable as they contribute to higher costs of debt and bank instability. The more pronounced the differences as regards types of enforcement, the higher the risk that the European Union is less attractive for debt finance than other regions and states offering higher and more equal support. Rational borrowers would tend to migrate towards those legal frameworks where banks offer debt finance at the lowest overall cost to the borrowers. As enforcement frameworks have an effect on the cost of debt finance, this means that borrowers would look to those regions and countries with attractive enforcement frameworks.