GHANA Law and Practice Contributed by: Adelaide Benneh Prempeh, Michelle Nana Yaa Essuman, David William Akuoko-Nyantakyi and Audrey Nana Oye Addy, B&P Associates
2020. The SEC may waive some or all of the pro - visions of this Code if it is satisfied that the SPE: • has its securities listed on a stock exchange outside Ghana; • is incorporated outside Ghana; and • is subject to corporate governance require - ments in the country where its securities are traded or where it is incorporated. 5. Synthetic Securitisation 5.1 Synthetic Securitisation Regulation and Structure Synthetic securitisation has not been attempted or regularised in Ghana. Accordingly, there is no express indication of whether or not it would be permitted. However, the position of the SEC is flexible, led by the dictates of the sector partici - pants and the market. 6. Structurally Embedded Laws of General Application 6.1 Insolvency Laws The Corporate Insolvency and Restructuring Act (CIRA), 2020 (Act 1015), regulates insolvency in Ghana. Generally, the CIRA does not apply to companies carrying on the business of banking, insurance or any other business which is subject to special legislation, except where the special legislation does not provide for a rescue provi - sion. Although the securities industry is subject to Act 929, there are no specific provisions for insolvency. Accordingly, by necessary implica - tion, the general insolvency laws contained in the CIRA would apply to insolvent companies in the securities industry – and by extension com - panies engaged in securitisation.
Under the CIRA, when insolvency occurs, the company shall be placed under administration and restructuring, before liquidation. During the business rescue stage, the property and affairs of the distressed company would be managed and restructured by an appointed administra - tor, in a manner that provides an opportunity for the company to as much as possible con - tinue in existence as a going concern. It is only when administration and restructuring fail that the company is placed in official liquidation and wound up in order to pay its creditors. This statutory structure affords financially distressed companies an opportunity to recover and con - tinue their operations into the foreseeable future. Stay of Proceedings During administration, a creditor is not permit - ted to start or continue legal proceedings or an enforcement process against the company and its property. This may extend the timeframe with - in which a creditor may retrieve, claim or access any property or collateral. In restructuring, the restructuring agreement may provide a morato - rium period during which creditors cannot sue the company. If liquidation is explored, there is a stay of legal proceedings (see CIRA, Section 32, Section 33 and Section 87). The stay of proceed - ings may protect an originator in a securitisation transaction or an insolvent SPE from overwhelm - ing creditor claims or enforcements. Restoration Rule A creditor who received money or property regarding a debt that the company owes them may be required to pay it back to the liquida - tor. The creditor in this case must have received the money or property within 21 days before the winding-up petition was filed. This restoration rule does not include payments:
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