Constitution and Governance of the International Association of Insolvency Regulators
Adopted at the Annual General Meeting of the Association held in Edinburgh on 26 September 2013, in substitution for all previous versions of the Constitution, Byelaws and Rules (by whatever name called), and having effect from 26 Septemeber 2013.
Part 1 - Introduction
1.1 A group of insolvency regulators formed a voluntary organisation in 1995 known as
The International Association of Insolvency Regulators(the “Association” or “IAIR”). The Association operates as a neutral and independent organisation with the aim of achieving the objectives approved by the members and set out in this Constitution.
The Members of the Association:
- That effective and efficient procedures for dealing with insolvency or financial failure are of fundamental importance in maintaining confidence in the operation of financial markets, encouraging enterprise, underpinning investment and supporting business and consumer credit;
- That functional, independent, impartial and transparent systems for regulation are essential to the efficiency and effectiveness of those procedures; and
- That, increasingly, insolvencies extend beyond national jurisdictions through the continuing development of international trade, finance and business arrangements.
- To provide a forum through which national insolvency regulators can contribute to wider understanding of insolvency matters;
- To monitor, and publicise among its membership, developments in insolvency law and practice, both at national and international levels; and
- To promote international co-operation on insolvency issues while recognising the need for regulators to maintain the integrity and authority of their own legislative frameworks.
1.2 In this Constitution, the following words and phrases have the following meanings, unless the context otherwise requires:
“Association website” means the website of the Association at www.insolvencyreg.org or any other replacement or additional website of the Association established from time to time;
“Conference” means the annual conference of the Association;
“electronic vote” means a vote cast by way of email, fax or by any other generally recognised means of written electronic communication (excluding SMS/text message);
“financial year” means the twelve month period from 1 January to 31 December;
“financial year end” means the 31 December each year;
“host member” means the member who will host and organise the Conference;
“remote facilities” means any form of meeting where some or all of the participants do not meet in person, but meet using telephone conference or videoconference facilities, through which a participant can hear all other participants and be heard by them instantaneously and simultaneously and, unless otherwise specified, any reference to a “meeting” shall include a meeting held by remote facilities;
“subscription” means the annual subscription payable by members to the Association pursuant to paragraph [3.5];
1.3 Any reference to any a document or other information being “circulated” to members or any of them shall mean circulation by way of (i) hard copy sent by post and/or (ii) electronic copy sent by email or fax and/or (iii) the relevant item being published or made accessible in full on the members’ section of the website of the Association.
1.4 Words importing the singular number only shall include the plural and vice versa; words importing the masculine gender shall include the feminine gender; and words importing persons or entities shall include bodies corporate, companies, unincorporated associations, statutory authorities and other organisations established by law and any number of such persons.
1.5 Any reference to a “day” shall be to a calendar day. A reference to a “business day” shall be to a day on which banks are generally open for business in the relevant member’s home jurisdiction.
1.5 Headings used in the Constitution are for convenience only and shall not affect the interpretation or construction of any provision of this constitution or clarify or modify the effect of such provisions.
1.6 In interpreting this Constitution, the words and expressions used shall, except where the context otherwise requires or permits, have their normal and usual meaning and no member shall seek to apply any term of law or any interpretation applicable under law or statute in its home jurisdiction to alter the meaning or effect of any term of this constitution so as to confer any advantage on itself or any other member or to cause any adverse impact on any other member.
Part 2 – Objectives of the Association
2.1 The principal objective of the Association is to provide a forum to promote liaison, co-operation, learning and discussion amongst its members. More specifically, the aims of the members are:
- To facilitate the exchange of information on the national insolvency systems of members, their roles and responsibilities, and issues relevant to their activities, including operational and management practices and procedures, and responses to changing insolvency trends;
- To identify factors which may impede the efficient and effective administration of insolvencies, particularly cross-border insolvencies, and to seek to find solutions to such factors;
- To share best practice in the operation of regulatory programs and oversight and the mitigation of risk to the credibility of insolvency systems;
- To contribute to wider understanding of insolvency law and practice and the development of government policy, practice and regulatory approaches which reflect different jurisdictions’ legal, socio-economic, historical, cultural and institutional frameworks; and
- To develop and maintain relationships with other international insolvency bodies and national and supra-national agencies and authorities having an interest in or influence on insolvency law, practice and policy in order to ensure awareness by members of international developments.
Part 3 – Membership - Qualification as a member
3.1 To qualify as a member of the Association, the applicant must be a regulator or governmental department or agency having jurisdiction for insolvency policy and legislation, practice and administration and/or regulation in their country of origin. A country may have more than one entity which qualifies as a member of the Association.
3.2 The Executive Committee may offer honorary membership of the Association to an individual who, in the opinion of the Executive Committee, through his or her employment with a member and/or any previous role he or she has held in the Association, has made a valuable and significant contribution to the work and objectives of the Association.
An honorary member will be entitled to attend Conference and any other Association events and workshops and to receive any briefings or reports published by the Association (subject to payment of such fees and charges as are determined by the Executive Committee).
While they may attend general meetings of the Association, honorary members shall have no voting rights on Association business, will not form part of the quorum at any general meeting and cannot hold office within the Association.
Application for membership
3.3 Any application for membership must be made on the application form which will be provided by the Secretariat on request of an applicant. The completed application form should be sent to the Secretariat and must include a description of the applicant and its responsibilities and roles which are relevant to membership of the Association. The Secretariat will acknowledge all applications received within seven days of receipt and circulate copies of the application to the members of the Executive Committee.
3.4 All applications will be considered by the Executive Committee, which will decide whether the applicant should be admitted as a member of the Association. The Secretariat will notify the applicant of the outcome of the Executive Committee’s review within seven days of its determination being made. If the application has been approved, the Secretariat will request payment of the subscription (or part thereof) in accordance with paragraph [3.5]. The Secretariat will add the applicant to the register of members and will issue it with any password or other authority required to allow it to access the members’ section of the Association website.
3.5 All members shall pay a membership subscription (“subscription”) in respect of each financial year of the Association. If an entity becomes a member during the financial year, its subscription in respect of that year will be pro-rated as appropriate. There will be no refund in full or in part of any subscription if a member ceases to be a member for any reason during a financial year except with the approval (in its sole discretion) of the Executive Committee.
3.6 At the Annual General Meeting, the Executive Committee shall propose to the members, for approval, the amount of the membership subscription for the next financial year, taking into account the budget and anticipated financial liabilities of the Association for the relevant financial year and any benefits that the Executive Committee proposes be included as part of the subscription in respect of the relevant financial year.
Following approval of the subscription by the members (or the agreement at the Annual General Meeting of an alternative subscription), the Executive Committee will use its reasonable endeavours to notify (via the Secretariat) all members of the subscription for the relevant financial year, as approved at the Annual General Meeting, no later than 30 November in the immediately preceding year but any delay in making such notification will not invalidate any increase in the subscription for the relevant financial year.
No membership subscription will be payable by an honorary member.
3.7 Subscriptions must be paid by no later than 31 March (or the next business day, if applicable) (the “due date for payment”) in the financial year to which they relate. The Secretariat may issue reminders to any member who has not paid and a final reminder will be issued no later than 1 April (or the next business day, if applicable) in the relevant financial year. The Secretariat will promptly after 1 April produce and circulate to the Executive Committee a report listing the members who have paid their subscriptions as well as those whose subscriptions are unpaid. The Executive Committee may (but shall not be obliged to) issue further reminders for payment prior to terminating the membership of any member who has failed to pay its subscription pursuant to paragraph [3.10].
Entitlement to vote
3.8 Every member has one vote at any general meeting of the Association (or in any postal or electronic vote held by the Association) and each member will designate and name a representative of that member who is authorised to cast the member’s vote on the business of the Association.
Termination of membership
3.9 Any member may terminate its membership of the Association by giving not less than one month’s written notice of termination to the Secretariat and its membership will terminate on the expiry of such notice period.
3.10 The Association (acting through the Executive Committee) may terminate the membership of any member if:
- such member fails, without cause, to pay its subscription within three months of the due date for payment (as specified in paragraph 3.7) (unless alternative payment arrangements have been agreed with the Executive Committee); or
- the department, agency or authority ceases to qualify for membership by virtue of a change in its functions and activities.
The Association, through the Executive Committee, may also terminate the membership of any member if, in the reasonable opinion of the Executive Committee, such member is in material breach of any of the other terms of this Constitution or if its continued membership would have an adverse effect on the goodwill and reputation of the Association.
In each case, the Executive Committee will cause to be sent to the relevant member not less than one month’s written notice of termination and the membership will terminate on the expiry of such notice period.
3.11 The Executive Committee may, on application by an entity which is interested in becoming a member of the Association and which meets the relevant membership criteria, grant that entity “observer status” of the Association. No membership subscription will be payable by an entity which has been granted observer status.
3.12 Observer status will permit the relevant entity to attend all or part of the Association’s Conference and any other workshop, seminar or training event organised by the Association (subject, in each case, to payment of all applicable delegate fees and charges). The entity may, if the Executive Committee agrees, attend the Association’s Annual General Meeting. The entity may also be permitted to access such parts of the members’ section of the Association’s website as the Executive Committee determines and to receive copies of any reports or surveys prepared by or on behalf of the Association. An observer shall not be entitled to vote at any meeting of the Association.
3.13 Other than in exceptional circumstances and at the discretion of the Executive Committee, observer status shall last for no longer than one year (or such shorter period as the Executive Committee may specify when granting such status to the applicant). At the end of the relevant period, if the entity does not make a formal application for membership, its observer status will terminate.
Obligations of Membership
3.14 To promote the sharing of information and best practice, all members are expected to file with the Secretariat before each Conference a brief report summarising developments and changes in relation to insolvency law and practice and any related matters in its jurisdiction in the period since the previous Conference. The format of the report is at the discretion of the member but it should be no more than 5 pages which highlights:
workload trends;principal activities undertaken by the member;key policy and legislative initiatives;significant changes in practice and procedure adopted by the member;other major events and challenges occurring within the jurisdiction’s insolvency system.
Each report will be published on the members’ section of the Association website as soon as practicable after receipt of the report by the Secretariat.
3.15 All members are expected to:
observe and comply with the terms of this Constitution;collaborate as much as possible with any research projects and surveys that are proposed by the Executive Committee and approved by the Association;pay subscriptions in a timely fashion;designate and name the individual representative who is authorised to vote on behalf of the member regarding Association business;keep the Secretariat updated as to any changes in the authorised representative; andinform the Secretariat in a timely manner of any updates required to the Association’s register of members and website regarding information pertinent to the member.
3.16 Any reference in the Constitution to any member’s entitlement to participate in the business of the Association, including the ability to attend and vote at General Meetings, act as a member of the Executive Committee (including as Chair or Vice Chair), nominate any person for any office in the Association, propose business for consideration by the Association or attend the Association Conference, are subject to the member having paid its subscription in full before the due date for payment.
3.12 Membership is not transferrable.
Part 4 - Structure and office holders of the Association - Introduction
4.1 The Association will transact it business and perform its functions through:
- the Association in General Meeting;
- the Chair;
- the Vice Chair
- the Executive Committee;
- an Executive Director (if appointed) and
- the Secretariat.
4.2 No person may be nominated for or elected to the post of Chair or Vice Chair or as a member of the Executive Committee unless that person is a representative of a member of the Association. Honorary members cannot hold an office in the Association.
4.3 The Chair of the Association is also the Chair of the Executive Committee and is the principal spokesperson for the Association. The Chair is responsible for ensuring that the Association functions efficiently and effectively and may exercise such powers and perform such duties as may from time to time be assigned to him or her by the Association in General Meeting. The Chair is also responsible for ensuring that an Annual Report on the work of the Association in the previous financial year is prepared and approved by the Executive Committee and is tabled at the Annual General Meeting or circulated to the members for review.
4.4 The Chair will be appointed at an Annual General Meeting by a simple majority of members voting at that Annual General Meeting or having conveyed their votes to the Secretariat in advance of the Annual General Meeting. The Chair will be appointed for a term of approximately one year, from the conclusion of the Annual General Meeting at which he or she is elected to the conclusion of the next Annual General Meeting. The Chair may stand for re-election as Chair, or election as another office holder of the Association, at the end of his or her term of appointment. Any vacancy in the position of Chair which arises during the term of office will be filled by the Vice Chair until the next Annual General Meeting.
4.5 The Vice Chair will be appointed at an Annual General Meeting by a simple majority of members voting at that Annual General Meeting or having conveyed their votes to the Secretariat in advance of the Annual General Meeting. The Vice Chair will be appointed for a term of approximately one year, from the conclusion of the Annual General Meeting at which he or she is elected to the conclusion of the next Annual General Meeting. The Vice Chair may stand for re-election as Vice Chair, or election as another office holder of the Association, at the end of his or her term of appointment. Any vacancy in the position of Vice Chair which arises during the term of office will be filled by a member of the Executive Committee who is selected by majority vote of the members of the Executive Committee until the next Annual General Meeting.
The Chair may delegate specific duties to the Vice Chair and the Vice Chair will perform all of the duties of the Chair in the Chair’s absence or inability to act.
4.6 The Executive Committee comprises the Chair of the Association, the Vice Chair and a minimum of four and a maximum of eight committee members. All committee members of the Executive Committee will be elected at an Annual General Meeting by a simple majority of members voting at that Meeting or having conveyed their votes to the Secretariat in advance of the Annual General Meeting.
It is the intention of the members that the Executive Committee will, so far as possible, be comprised of representatives from the different geographical areas of the Association’s membership and the members will take this general principle into account when electing members to the Executive Committee.
It is anticipated that the representative of the member who will be the next host of the Conference will be a member of the Executive Committee, even if such person would not otherwise be an office holder.
4.7 The committee members of the Executive Committee will be appointed for a term of approximately one year from the conclusion of the Annual General Meeting at which they are elected to the conclusion of the next Annual General Meeting. A committee member may stand for re-election as a committee member or for another office in the Association at the end of his or her term of office.
4.8 Any vacancies that arise in the membership of the Executive Committee may be filled by the Executive Committee (provided it is still quorate notwithstanding the vacancy) by co-opting a representative of a full member to act as a member of the Executive Committee until the next Annual General Meeting. If the Executive Committee becomes inquorate as a consequence of any vacancy arising, a general meeting of the members must be convened to elect additional committee members.
4.9 The role of the Executive Committee is to act as the executive body of the Association. The Executive Committee as a whole will ensure that the terms of this Constitution are observed and that proper standards of administration and conduct are maintained in the conduct of the Association’s activities and with all its members and third parties.
Election of office holders
4.10 Candidates for any position on the Executive Committee may be nominated by the member which he or she represents or by any other full member with the consent of the nominee. Nominations must be submitted to the Secretariat not later than 14 days before the date of the Annual General Meeting. The Secretariat will circulate details of the nominations for each position to the members at least seven days before the date of the Annual General Meeting.
If a vacancy arises which requires to be filled prior to the next Annual General Meeting, the Secretariat will notify members of such vacancy not less than 14 days prior to any General Meeting at which nominations of members to fill such vacancy will be considered and the foregoing provisions of this paragraph shall apply in relation to the nomination of candidates and notification to members.
If no nominations are received prior to the General Meeting or Annual General Meeting, the Chair of the Meeting may seek nominations from among those attending the Meeting and a vote will be taken on any nominations so received.
4.11 The Executive Committee may from time to time engage an individual on a consultancy basis to act as an Executive Director. The role of the Executive Director will be to support the work of the Association in the administration of, and pursuing the purposes of, the Association. The Executive Director will have and may exercise such powers and perform such responsibilities and obligations relating to the business of the Association as the Executive Committee may delegate to him or her from time to time. The terms of engagement of any such Executive Director, including as to specific projects and responsibilities, hours of work, remuneration and benefits and provisions relating to termination of the engagement, will be determined by the Executive Committee and a summary of the principal terms of the contract between the Association and the Executive Director will be circulated to the members.
Any Executive Director will report to and be under the day-to-day direction and supervision of the Chair. The Executive Director will be an ex officio member of the Executive Committee and will be deemed to be an office holder.
Remuneration of office holders
4.12 No remuneration shall be payable to any office holder other than to an Executive Director on such terms as may be agreed by the Executive Committee. Expenses incurred by an office holder in the performance of any specific responsibility delegated to him or her, may, if agreed by the Executive Committee, be reimbursed to him or her.
4.13 If any office holder (which for the purposes of this paragraph includes an Executive Director and the member hosting the Association Conference from time to time) enters into any liability on behalf of the Association in performance of his or her role as an office holder then, provided that the nature and extent of such liability has been approved in advance by the Executive Committee, the Association shall indemnify and keep indemnified such office holder against all costs, charges and expenses whatsoever that such office holder incurs or sustains in respect of such liability or in respect of any act, deed or thing whatsoever done or permitted by him or her in the execution of his or her duties, except to the extent that any costs, charges or expenses are occasioned or increased by reason of the office holder’s own negligence or wilful default.
Termination of office
4.14 The appointment of any person as Chair, Vice Chair, committee member of the Executive Committee or Executive Director will terminate with immediate effect if he or she:
- becomes bankrupt within the meaning of the bankruptcy laws of his or her home jurisdiction;
- is disqualified from holding the office of director under any legislation in that jurisdiction;
- becomes physically or mentally incapable of performing his or her role and is likely to remain so for more than three months;
- resigns from office by giving at least one month’s notice in writing, on the expiry of such notice;
- ceases to be employed by the member organisation which he or she represents; or
- is removed from office by a resolution of at least two-thirds of the members of the Association.
Part 5 - Association in General Meeting
5.1 The Association will hold an Annual General Meeting once in each financial year and such other General Meetings as are necessary for the proper conduct of the Association’s business from time to time. Any reference to a General Meeting shall, unless specific provision is made, include an Annual General Meeting.
Annual General Meetings
5.2 The date of the Annual General Meeting may vary but it is intended that such meeting will, so far as practicable, coincide with the dates determined for the Association Conference.
5.3 The business to be conducted at Annual General Meetings of the Association will, so far as applicable, include receiving the Annual Report, taking any decisions that are reserved to the members, electing office-holders, considering amendments to the Constitution, approving minutes of previous general meetings, approving the annual accounts of the Association, approving the budget proposed by the Executive Committee for the forthcoming year, issuing directions to the Executive Committee and disposing of such other matters as may be necessary for the proper conduct of the Association’s business.
5.4 General meetings other than the Annual General Meeting may be called by the Executive Committee (via the Secretariat) from time to time as it sees fit for the proper conduct of the Association’s business. A General Meeting will also be convened if at least six members of the Association so request in writing (such request to include full details of the matters to be discussed and copies of any relevant documents), in which case the Secretariat, in consultation with the Chair, will determine a date for such meeting (being not more than four months from the date of the request by such members) and circulate notice of the meeting to the members.
Notice of meetings
5.5 Notice in writing of not less than 30 days must be given of the Annual General Meeting. Notice in writing of not less than 30 days must also be given for any other general meeting of the Association unless the Executive Committee determines that there are matters requiring the urgent consideration of the members.
5.6 A notice of a general meeting (including any Annual General Meeting) must specify the date, time and place at which the meeting will be held or, if applicable, confirm that the meeting will be held by remote facilities and include any Conference dial-in number and password. The notice must identify clearly the items of business to be considered at the meeting, in sufficient detail as to allow members to be able to reach an informed and reasoned decision on the matter, and any resolutions which it is proposed that the Association should adopt. The notice must be accompanied by copies of any relevant documents to be considered by the members.
5.7 A notice of any general meeting should include an invitation to the members to propose other business to be considered at the meeting. Any member who wishes to propose additional business must notify the Secretariat, with full details of the matter and copies of any relevant document not less than 14 days before the meeting. The Secretariat will circulate such details and documents to the members at least seven days before the meeting takes place.
Conduct of meetings
5.8 The Chair (or in his or her absence, the Vice Chair, failing whom another member of the Executive Committee nominated by the Executive Committee) will preside over any General Meeting of the Association. The Vice Chair will assist the Chair in the conduct of General Meeting business.
5.9 A quorum for any General Meeting is not less than seven full members attending in person or by remote facilities.
5.10 Unless specified otherwise in this Constitution, decisions at a General Meeting will be taken by a simple majority of the members attending (personally or by proxy) or who have conveyed their vote to the Secretariat in advance of the meeting pursuant to paragraph [5.11]. In the event of an equality of votes in favour of and against any proposition at a General Meeting the proposition will not be passed or adopted and the status quo will continue.
Post or electronic voting and meetings using remote facilities
5.11 If a member who is entitled to vote on a matter does not wish or is unable to attend the meeting, the member’s vote on such matter may be conveyed to the Secretariat by post or electronic vote.
The Executive Committee may also decide, for reasons of cost or convenience, to conduct any General Meeting (excluding the Annual General Meeting) by post or electronic voting or by remote facilities.
5.12 Postal or electronic votes must be received by the Secretariat not less than seven days before the General Meeting at which they are to be cast, or such other date and time (the “specified date”) as the Executive Committee determines is appropriate and reasonable in the particular circumstances and is notified to members by the Secretariat, such notice to be given not less than fourteen days prior to the specified date.
5.13 A General Meeting conducted by post or electronic voting or by remote facilities may dispose of any business that can properly come before a General Meeting. Notice of such a meeting, with all supporting documents, must be sent to the members in accordance with paragraphs [5.5 to 5.7].
5.14 No resolution will be passed or adopted by way of post or electronic voting or at a meeting held by remote facilities unless the members voting or attending would constitute a quorum if a meeting was held in person.
5.15 A General Meeting may not be conducted by post or electronic voting only if not less than six members of the Association, by notice to the Secretariat, sent at least fourteen days prior to the specified date, object on the basis that the relevant business merits discussion at a general meeting of the Association held either in person or by remote facilities. If such an objection is made, the Executive Committee will convene a general meeting at which the relevant matters may be discussed by the members.
5.16 Any member entitled to attend and vote at a General Meeting is also entitled, if unable to attend the meeting either in person or by remote facilities, to submit to the Secretariat its views on the matters to be discussed at the meeting (which will be conveyed by the Chair or the Vice Chair to the meeting).
5.17 The Secretariat will record all votes in favour of or against any resolution put to the members, whether cast in person or by proxy, by remote facilities or by post or electronic voting, and shall notify the members of the outcome of any vote, including whether the relevant resolutions were approved or rejected by the members and the number of votes cast for and against each resolution.
5.18 At a general meeting, votes may be given either personally or by proxy.
5.19 An instrument appointing a proxy shall be in writing, in a form approved by the Executive Committee, and shall be executed by or on behalf of the relevant member. Only an office holder of the Association or another member of the Association may be appointed as a proxy.
5.20 The instrument appointing a proxy will be signed by an authorised representative of the relevant member and must be sent to the Secretariat, by post, email or fax, to arrive not less than 48 hours before the time for holding the relevant meeting. Any instrument of proxy which is not delivered timeously or in the appropriate form shall be invalid.
5.21 The Secretariat will circulate a copy of the approved minutes of all General Meetings to all members. “Approved” means approved by the members who attended the relevant General Meeting. Draft minutes should be prepared for approval and circulated to the attendees by the Secretariat not later than 30 days after the meeting. Once the minutes have been approved, the Secretariat will circulate the minutes to all members within 14 days of approval.
5.22 If no meeting is held and any matter is resolved by post or electronic voting only, pursuant to paragraph [5.11], the Secretariat will send a report to all members confirming the outcome of the voting, whether the relevant resolutions were approved or rejected by the members and the number of votes cast for and against each resolution. The report will be circulated within 21 days of the date by which votes were required to be submitted by the members.
Part 6 – Proceedings of Executive Committee
6.1 The Chair, or in his or her absence the Vice Chair, failing whom another member of the Executive Committee nominated by the Executive Committee, will act as chairperson of all meetings of the Executive Committee. The Executive Committee will, on behalf of the Association, take all decisions and actions necessary to achieve the objectives of the Association and in accordance with any directions given by the Association in General Meeting.
6.2 The Association in General Meeting or the Executive Committee may establish sub-committees to assist it with the performance of its duties or to conduct specific projects and for such purposes, may co-opt other representatives of members to serve on such sub-committees or invite other persons (whether or not members of the Association) to take part and assist in their deliberations. The Association or the Executive Committee (as applicable) will establish the terms of reference and any rules of procedure to apply to such sub-committees, including quorum, frequency of meetings and any special voting majorities that will apply.
6.3 Executive Committee meetings will be convened by written notice of not less than 14 days being circulated to the committee members, either at the direction of the Chair or on the request in writing of not less than three members of the Executive Committee. The notice of meeting must specify the date, time and place at which the meeting will be held or, if applicable, confirm that the meeting will be held by remote facilities and include any conference dial-in number and password. The notice must clearly identify the items of business to be considered at the meeting and should include copies of any relevant documents to be considered by the committee members. Committee members are entitled to propose to the Chair matters which require to be considered by the Executive Committee from time to time.
A meeting of the Executive Committee may be held on short notice or without formal notice having been given if all of the committee members participate and waive the giving of notice or if any committee members who are absent signify in writing (including by email) their consent to the meeting taking place in their absence.
6.4 The quorum for a meeting of the Executive Committee will be three members of the Committee (of whom one must be the Chair or the Vice Chair) attending in person or by remote facilities. Decisions of the Executive Committee will be taken by simple majority of the members present at the relevant meeting and/or who have indicated the manner in which they wish their votes to be cast to the Secretariat in advance of the meeting. In the event of an equality of votes for and against a proposition at the meeting, the Chair will not have a second or deciding vote, the proposition will not be passed or adopted and the status quo will continue.
6.5 A decision of the Executive Committee may be taken in the form of a resolution in writing, copies of which have been signed by each committee member or to which each committee member has otherwise indicated agreement in writing. “Writing” in this context shall include the use of email, fax and portable document format (“pdf”) documents.
A decision may not be taken pursuant to this paragraph if the committee members participating would not have formed a quorum at a meeting of the Executive Committee.
6.6 Any meeting or deliberations among members of the Executive Committee conducted by any means of remote facilities shall be valid (provided they are quorate) and minutes will be prepared for such meeting as if the meeting had been held in person.
6.7 If any member of the Executive Committee believes that he or she may have a conflict of interest in any matter to be decided by the Executive Committee, whether by virtue of his or her personal involvement in any matter or his or her employment by the relevant member of the Association, he or she must disclose the existence of such conflict to the other committee members and, unless the remaining committee members decide otherwise, shall not participate in the discussion or voting by the Executive Committee in respect of such matter.
6.8 The Secretariat will circulate to all members a copy of the approved minutes of all Executive Committee meetings or an approved report which provides a reasonable and fair summary of the deliberations, conclusions and decisions of the Executive Committee. “Approved” means approved by the members who attended the relevant Executive Committee Meeting. The draft minutes and any report of any Executive Committee meeting should be prepared for approval and circulated to the attendees by the Secretariat not later than 30 days after the meeting. Once the minutes and any report have been approved, the minutes (or the approved report) will be circulated to all members within 14 days of approval.
Part 7 – Secretariat - Appointment of Secretariat
7.1 The Executive Committee shall appoint a Secretariat, being either (i) a member of the Association (including a member of the Executive Committee) willing to act in such capacity or (ii) a third party provider, to provide Secretariat services, on such terms, including as to payment (if applicable), as the Executive Committee may determine. The Secretariat will be under the direction and supervision of the Chair or the Vice Chair or another member of the Executive Committee to whom the Chair may delegate this task.
If a member provides the Secretariat for the Association, it shall be entitled to be reimbursed for all reasonable costs and expenses incurred by it in providing such services on the basis and subject to any financial limits agreed in advance from time to time with the Executive Committee.
7.2 If the Executive Committee appoints a third party provider (the “Provider”) as the Secretariat, it will conduct such enquiries prior to selecting the Provider as it sees fit, which may include the obtaining of references and the completion of a tender document, to satisfy itself, to the extent reasonably practicable, that such Provider is an appropriate person to appoint as the Secretariat.
7.3 If a third party Provider is appointed, the Executive Committee must agree a written contract with the Provider setting out all relevant terms of the agreement with the Provider, including the description of the Secretariat services to be provided, the required service levels, payment, termination and liability.
Details of the principal terms of the contract will be notified to the members by the Executive Committee (via the Secretariat).
Duties of Secretariat
7.4 The Secretariat will provide administrative support in accordance with this Constitution and so as to give effect to any directions of the Association in General Meeting, the Executive Committee and any Executive Director which are consistent with the terms of this Constitution.
In particular, and without prejudice to any other term of this Constitution, the Secretariat will:
- Keep all records of the Association;
- Keep minutes of meetings of the Executive Committee and of the Association in General Meeting;
-Maintain and keep up-to-date all books and records relating to the finances of the Association;
- Arrange for the preparation of the annual accounts of the Association;
- Ensure that the Constitution is reviewed as necessary;
- Receive and examine for completeness applications for membership of the Association prior to consideration by the Executive Committee;
- Circulate notices of meetings and all other relevant correspondence and documents to members and Executive Committee members;
- Circulate notices to members relating to payment of subscriptions and ensure that all subscriptions are paid timeously and report any outstanding matters to the Executive Committee;
- Assist the Chair or the host member, as applicable, in all administrative matters relating to the organisation of the Association’s Conference; and
- Carry out such other functions and administrative duties as are set out in this Constitution and as are reasonably assigned to it by the Association in General Meeting and by the Executive Committee.
7.5 The Secretariat will keep the administrative records of the Association in such written, hard copy form and/or electronic form as may be specified by the Executive Committee, and so that they are readily and completely transferable on any change in the person providing the Secretariat function. The records will accurately reflect the consideration of matters by the Association and by the Executive Committee, including (so far as practicable) up-to-date minutes of all General Meetings and Executive Committee meetings.
7.6 The Secretariat will also keep all membership records of the Association, including an up-to-date register of all members (including honorary members) and those having observer status from time to time so that the members of the Association, and any representative authorised by a member, can be ascertained and contacted at any time. Any member may request a copy of the register of members at reasonable times and on reasonable notice. The Secretariat will ensure that an up-to-date list of all members, with the contact details of each member’s authorised representative, shall be published on the members’ section of the Association’s website.
7.7 All records of the Association shall be kept in the English language. Any document or correspondence that is received in another language will not require to be translated only for record-keeping purposes.
7.8 The records of the Association will be kept at the office of the Secretariat, the address of which will be circulated to members in writing by the Secretariat. The records may be inspected by any full member of the Association and any member of the Executive Committee at reasonable times and on reasonable notice. A member may, acting reasonably, request copies of any records on payment of the costs of copying, provided that the effort required in copying such records does not involve an excessive or disproportionate amount of work for the Secretariat.
7.9 The minutes of General Meetings of the Association and of meetings of the Executive Committee shall be retained for a period of ten years from the date of the relevant meeting; records of applications, approvals and terminations of memberships shall be retained during a member’s period of membership and for a period of five years after termination of membership; all accounting records of the Association, including copies of vouchers evidencing receipts and payments and the annual accounts, shall be retained for a period of not less than ten years; and correspondence with members and third parties and any other records shall be kept for a period of five years; or, in each case, such longer period as the Executive Committee may specify in any particular case. In any event, no records of the Association shall be destroyed without the prior approval of the Executive Committee.
Transfer of Secretariat functions
7.10 If the functions of the Secretariat are transferred from one organisation to another (including between members), the outgoing Secretariat will ensure that all the administrative and financial records, including the register of members and minutes of general meetings and meetings of the Executive Committee, are as up-to-date and complete as possible at the time of transfer.
7.11 The outgoing Secretariat will use all reasonable endeavours to ensure the safe and prompt transfer of all of the Association’s administrative and financial records to the incoming Secretariat promptly upon its appointment commencing. Where appropriate, the outgoing Secretariat may arrange for the archiving or long-term storage (at the cost of the Association and under the control of the incoming Secretariat) of any historic records held by it which are suitable for archiving. The outgoing Secretariat may destroy or dispose of historic records only if and to the extent permitted by paragraph [7.9] of this Constitution.
7.12 The outgoing Secretariat will be responsible for ensuring the prompt transfer of all Association funds to an account established by the incoming Secretariat for the Association or otherwise to the control of the incoming Secretariat and shall liaise with the incoming Secretariat to ensure that any necessary changes to any bank or other mandates and any funds transfers to allow the incoming Secretariat to deal with the Association funds are processed as soon as practicable. The outgoing Secretariat will provide the incoming Secretariat with an up-to-date financial statement of the Association showing the state of its affairs at the date of the transfer.
7.13 The incoming Secretariat will be responsible for notifying members of the change of location, personnel and contact details of the Secretariat.
7.14 The Executive Committee shall ensure that if any third party Provider is appointed to act as the Secretariat, the above terms relating to transfer shall be included, to the extent applicable, in the contract or service level agreement under which such Provider is appointed.
Part 8 Financial management and accounting - Objective
8.1 In managing the financial affairs of the Association as a whole, the Executive Committee’s principal objective shall be to ensure that the Association has sufficient funds to cover all expenses that are expected to arise in any financial year and to accumulate a prudent but modest surplus or reserve to meet any unexpected or unforeseeable costs that may arise or to cover revenue shortfalls arising from a decline in membership. The surplus may also be applied in meeting extraordinary costs or to fund projects approved by the Association in General Meeting (for example, major website updates, approved research projects or IAIR workshops).
For the avoidance of doubt, although the Executive Committee shall aim to make a small surplus each year, the Association is a “not for profit” organisation and the Executive Committee should not seek to accrue substantial profits. No surplus or reserve that may be accrued from time to time by the Association shall be distributed to the members but will be applied in the furtherance of the objectives of the Association.
Approval of budget
8.2 The Secretariat will, prior to the commencement of the new financial year, consult with the Executive Committee with a view to preparing the budget of the Association and projections of its income and expenditure for the forthcoming year. After consultation, the Secretariat will submit the draft budget to the Executive Committee for approval. Once approved by the Executive Committee, the Secretariat will circulate the budget to the members for approval.
8.3 The Secretariat will ensure that any unplanned or unexpected expenditure which arises during the course of the financial year and was not included in the approved budget will be submitted to the Executive Committee for specific authorisation. Neither the Executive Committee nor any committee member nor any member may commit the Association to expenditure which was not included in or is in excess of the approved budget without the prior authority of the Executive Committee.
8.4 Subject to the relevant payment having been duly authorised either within the approved budget or on an ad hoc basis by the Executive Committee, a cheque or other payment instruction may be issued under the signature of a single person authorised by the Executive Committee for that purpose [unless the amount of the relevant payment exceeds [£x], in which case the counter-signature of a second authorised person shall be required].
8.5 The Association’s main source of revenue is the annual subscriptions received from members. The amount of the subscription will be determined in accordance with paragraph 3.6.
8.6 Revenues may also be generated by organising and hosting Association workshops and conferences, including the annual Conference, and charging fees to members and other delegates attending such events. Such fees will be determined by the Executive Committee after consultation with the host member, taking into account all costs likely to be incurred in connection with such events. To allow the Executive Committee to make its determination, the member whose country will host such event will submit a proposal to the Executive Committee setting out the anticipated costs of the proposed event (including accommodation, refreshments, audio visual equipment, event insurance, speakers’ fees and expenses and all other related expenditures) as part of the approval process.
8.7 The Executive Committee may submit proposals to a General Meeting for raising additional income from and in connection with the business and activities of the Association and for managing any financial risks associated with such proposals. The Executive Committee may not proceed with such proposals unless they are approved by the Association in General Meeting and subject to such terms and limitations, including in relation to risk management, that the Association may specify.
8.8 The costs of the Association are intended to be limited to the ongoing costs of its work and activities, including the costs of the Secretariat, related administrative costs, website management, as well as the costs of holding General Meetings and Executive Committee meetings (for example, room rentals, meals and refreshments). All expenditure and costs must be approved by the Executive Committee.
8.9 The Association will not pay any travel, accommodation or subsistence costs incurred by any member or office holder in attending any General Meeting or Executive Committee meeting, save in exceptional circumstances approved in advance by the Executive Committee. If any member or office holder is requested by the Executive Committee or the Association to conduct any specific work for the Association, the Association shall reimburse the reasonable out-of-pocket costs and expenses incurred by such member or office holder in performing the work (subject to the production of satisfactory evidence of such costs and expenses and provided that they do not exceed any limits specified by the Executive Committee).
8.10 If approved by the Executive Committee, the Association may pay all or part of the travel, accommodation and subsistence costs of a member or office holder in attending a meeting or Conference of another international insolvency organisation or of any other relevant organisation if the Executive Committee believes such attendance will contribute to or advance the objectives of the Association.
8.11 The Executive Committee shall ensure that the Secretariat keeps accounting records on behalf of the Association that are sufficient to show and explain its transactions and its income and expenditure. The records must be such as to disclose, with reasonable accuracy, at any time the financial position of the Association at that time and to enable annual accounts to be prepared in accordance with paragraph [8.13]. Any member of the Executive Committee shall be entitled to inspect the accounting records at any reasonable time on reasonable notice having been given to the Secretariat.
8.12 Every six months (in January and July) the Secretariat will prepare and circulate to the Executive Committee and the members statements showing the receipts and payments of the Association for the preceding six months. The statement will show (i) sums which have become due to the Association as well as amounts actually received and (ii) amounts due to be paid by it which are outstanding.
8.13 The Executive Committee shall ensure that annual accounts (“Accounts”) of the Association are prepared for each financial year within ninety days after the financial year end. The Accounts shall be prepared applying generally accepted accounting principles (to the extent reasonably applicable to the Accounts) and must be presented fairly in all material respects so as to show the Association’s income and expenditure and any profit or loss of the Association in the relevant financial year. The Accounts shall include a balance sheet showing the state of the Association’s financial affairs at the financial year end, including any accumulated surplus and any outstanding financial obligations.
8.14 The Accounts must be approved by the Executive Committee and signed on its behalf by the Chair and the Vice Chair or, in the absence of one of them, another member of the Executive Committee.
8.15 The Executive Committee will ensure that the Accounts are submitted to and considered at the next Annual General Meeting of the Association.
The Accounts will be approved by the agreement of a simple majority of members voting at the annual general meeting (by whatever means).
8.16 The Accounts are not generally required to be audited but the Executive Committee may determine, in its discretion, that the Accounts for any specific year will be audited. An audit of the Accounts for a particular year must also be instructed if an audit is requested in writing by at least six full members of the Association. In either case, the Executive Committee will appoint an auditor to conduct an audit of the Accounts and report thereon to the Executive Committee. The Executive Committee shall ensure that the auditor’s report is circulated to the members by the Secretariat.
Part 9 – General - The Constitution
9.1 The Constitution is for the sole purpose of maintaining and operating the Association and seeking to achieve its objectives. It does not impose legal obligations on members or the agencies which they represent in relation to their insolvency systems.
9.2 The Constitution of the Association may be amended by the Association in General Meeting, subject to (i) not less than 30 day’s written notice of the proposed amendments having been given to members entitled to vote at the meeting and (ii) the approval of not less than 75% of the members attending the meeting (personally or by proxy) and/or voting by post or electronic voting.
No amendments to the Constitution may be proposed to members unless they have first been approved by the Executive Committee or, in the event of a dispute between the Executive Committee and the members proposing the amendments, the amendments have been approved by not less than six members. In each case, the Secretariat will circulate notice to all members of the proposed amendments.
If approved, any such amendments shall come into effect on the day after the General Meeting at which they are approved or on such other date as the General Meeting determines. The Secretariat will circulate to the members a copy of the Constitution as amended.
Confidentiality and data handling
9.3 The Chair, the Vice Chair, the Secretariat, the Executive Committee and all members of the Association will treat as confidential any information provided by any member or any third party to the Association and its members where such information is expressed as being confidential or not for disclosure or is clearly confidential taking into account the nature of such information.
9.4 The Executive Committee and all the members, to the extent that they receive or have access to any personal information relating to any individual by virtue of their membership of the Association, shall:
- hold such information as confidential and not disclose it to any third party (unless required to do so by law, regulation or court order);
- not use such information for any purpose other than that for which it was provided; and
- on request by such individual or the Executive Committee, dispose of any copies of such information held by it (except to the extent that it is required to retain the same by reason of any law or regulatory requirement binding upon it).
9.5 Any notice to be given to any member or to any Executive Committee member in respect of the proceedings of the Executive Committee may be given by personal delivery or post or by fax or email, addressed in each case to the individual and the address, fax number or email address provided by such member or Executive Committee member for service of notices from time to time. A notice sent by personal delivery shall be deemed to be received at the time of delivery to the address of the recipient; a notice sent by post shall be deemed to be received five business days after the date of posting and a notice sent by fax transmission or email shall be deemed to have been received on the day after the day on which the fax or email is sent by the sender (or, in each case, on the next business day if applicable).
Signature of documents
9.6 Any document, contract or other instrument in writing (“document”) that requires to be signed for and on behalf of the Association may be signed by any one member (whether or not an office holder) provided that the execution of such document has been authorised in advance by the Executive Committee.
Part 10 - Liability and Authority
10.1 The liability of any member to the Association is limited to payment of its subscription including any arrears outstanding from time to time.
10.2 No member may bind or purport to bind the Association, whether in contract or otherwise to any agreement, cost, expense or liability unless (i) such commitment or liability has been approved by the Executive Committee in advance (whether as part of the annual budget, the approved budget for the Association Conference or on an ad hoc basis) and (ii) such member is authorised in advance by the Executive Committee, within the scope of its delegated authority from the Association, to take such action.
Part 11 - Dissolution
11.1 The Association maybe dissolved:
- By a resolution of the Association passed by 75% of all full members; or
- If the number of members falls below five for a period of six months, on notice of not less than three months having been given to the remaining members by the Executive Committee.
11.2 In the event of dissolution, the funds and any other assets of the Association will be applied:
- In paying all debts and liabilities of the Association;
- In establishing a reserve for the Secretariat to continue in place for a period of six months and to meet any costs relating to the winding up of the affairs of the Association, including the suitable archiving and storage of all records of the Association; and
- In distributing any surplus to another organisation or institution which, in the opinion of the Executive Committee, has objects similar to those of the Association and which prohibits the distribution of any assets, income and property to its members to the same extent as the Association or in applying any surplus in such other manner as may be agreed by the Association in general meeting at the time dissolution is approved or to some charitable object.
11.3 If the Association is dissolved, the Secretariat will be responsible (at the cost of the Association) for the archiving or disposal of the administrative and financial records of the Association in a manner determined by the Association in General Meeting or otherwise by the Executive Committee.
11.4 The Executive Committee, with the assistance of the Secretariat, will be responsible for the realisation and disposal (in accordance with paragraph 11.2) of the funds and any other assets (including unpaid membership contributions) of the Association and any other matters required to be dealt with in the manner determined by the Association in General Meeting or otherwise by the Executive Committee.
Part 12 – Conference
12.1 The Association will normally hold a Conference, at which every member will be entitled to attend, every year. The Conference agenda must support the objectives of the Association by providing opportunities for member discussions, presentations on developments, issues and policies of key interests, interaction with other international organisations focusing on insolvency and promoting regulatory learning and sharing of best practice.
Time at the Conference will also be allotted for the Annual General Meeting of the Association, attendance at which will normally be restricted to the members who are entitled to attend such general meeting, honorary members and entities having observer status.
12.2 Members are encouraged to host a Conference within their jurisdiction where possible. The location of the Conference should, so far as practicable, be rotated among the member countries in a manner that balances the burden of travel costs on the membership as a whole from Conference to Conference.
12.3 The location of the Conference and the member who will organise the Conference (the “host member”) will be approved by the Association taking all circumstances into account. The host member need not otherwise be an office holder of the Association. The Conference may, with the agreement of the Chair, be held in the home country of the Chair, in which case, the Chair will take the lead in the organisation of the Conference. If the host member is not the Chair, the Chair will still act as Chair at the Conference unless otherwise agreed by the Association.
12.4 The host member, with the assistance of the Secretariat, shall be responsible for the organisation of the Conference, including collection of any delegate fees and other income and for payment of any costs and expenses of the Conference. In particular, the host member will prepare a budget showing all the anticipated costs of the Conference and the proposed delegate fee that is required to ensure that all costs are covered by the Conference income for consideration by the Executive Committee in accordance with paragraph 8.6
12.5 The host member must ensure that the Conference theme, agenda, venue and speakers, the attendance at Conference by observers and guests and the Conference budget are approved by the Executive Committee prior to any legally binding commitments or contracts being entered into with any third party.
12.6 The host member may agree one or more sponsors of the Conference, on terms approved by the Executive Committee as to the financial contribution to be made by the sponsor(s) and the nature of any attendance or marketing and promotion by the sponsor(s) at the Conference.
12.7 If the host member is not the Chair, the Chair and the host member will liaise closely in relation to the organisation and planning for the Conference and the host member will provide the Chair with such information relating to the Conference planning process as the Chair may reasonably request from time to time.
12.8 The Executive Committee may invite to the Conference one or more representatives of an entity which does not qualify as a member of the Association but which, in the opinion of the Executive Committee, carries out an integral role in insolvency and has a direct interest in the development of effective regulatory insolvency policies and systems (e.g. insolvency courts, self-regulatory bodies or supra-national agencies having an interest in insolvency matters). More than one such entity may be invited and may attend subject to payment of such delegate fee as the Executive Committee determines in consultation with the host member.
12.9 Conferences must be held in locations that provide a stable, secure and safe environment to which all members can travel and transact the business of the Association.
12.10 The host member will produce accounts of the Conference setting out the income received, all costs incurred and any surplus or loss arising from the Conference. The host member will pay any surplus to the Secretariat on behalf of the Association and may seek reimbursement of any loss from the Association (provided that the loss does not arise from any mismanagement of the administration or finances of the Conference by the host member).