B2B collections in LATAM: negotiate, mediate, settle

If you are dealing with B2B collections in Latin America, you may run into nonpaying debtors, commercial or financial issues the debtor may have, and local situations in Latin America that may considerably complicate succesfull collection.

In order to deal with such situations, change your mindset to negotiations, mediation and settlement.

Negotiations in B2B collections in Latin America

My advice is to be prepared to negotiate. A trigger to negotiate is often the lack of alternatives. Debtors may otherwise take the stand that they will not pay, and the only way to enforce payment, is to start legal proceedings. The latter is a rather unattractive (and sometimes, practically impossible) alternative. This will be discussed in more detail below. Please read the following articles about negotiation in international debt collection and settlement negotiations in Latin America for more insight.

Mediation in B2B collections in Latin America

Another alternative is to look for mediation in Latin America, especially if the amount owed is substantial. An independent third party will in such case be appointed as mediator between creditor and debtor. For more thoughts on mediation in international debt collection, please read this previous article.

Looking for a settlement

The aim of negotiations and mediation with the debtor in Latin America is reaching an amicable settlement. An agreement between creditor and debtor that both parties can live with. A settlement agreement may consist of a one-time payment as full and final settlement, or a payment plan, or a combination. Sometimes, continuation of the commercial relationship between the parties is also agreed, which can be continuation of import / export of delivery of services, whereby for each future payment (usually on a pre-payment basis) part goes towards payment of the debt.

Avoid legal proceedings in Latin America

The recommendation is to at all times avoid legal proceedings in Latin America. Generally speaking, as legal systems and requirements between countries differ, sometimes substantially, cross border files are not sufficiently solid in order to enforce payment by means of legal proceedings. Also, legal may be expensive and with little likelihood to collect, the creditor may end up with high legal bills which cannot be recovered from the counter party, the debtor.

In dealing with a debtor in Latin America, be prepared to negotiate, to mediate, and to settle. Avoid legal proceedings because of its complexity and costs.

If you are doing international business in Latin America and you are interested in learning more on B2B collections, please reach out to Cobroamericas, on Linked-In or follow us on Twitter.

To participate in conversations about debt collection in Latin America please join the Linked-In Group Debt Collection Latin America.

David Zannoni

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International B2B claims in Latin America

Collecting international B2B claims in Latin America is in many ways not comparable local collections. The nature of the claims, as well as the collection options available, are essentially different.

Focus should be om amicable collections

Due to the complexity of cross boarder documentation and procedures, and differences in legislation between the jurisdictions of creditor and debtor, generally speaking, legal enforcement of international B2B claims is unattractive, unpracticable and often, impossible. This means that the focus of collection of international B2B claims, also in Latin America and the Caribbean, will be on finding amicable solutions.

Amicable solutions: full payment, payment plan or settlement?

With an amicable approach to collection of an international B2B claim in Latin America, the objective is still to achieve payment for the creditor, as soon as possible. In looking for an amicable solution, it is important to be prepared to negotiate with the debtor. If full and immediate payment cannot be achieved, provided there are no disputes, counter claims or insolvencies, the alternatives are to negotiate a payment plan with the debtor (which entails a more long-term approach) or to look for a partial payment as full and final settlement (if the creditor prefers a short-term solution).

How to deal with disputes in international B2B claims?

international business claims Latin AmericaIf the debtor disputes the claim, it is important to determine the reason. If feasible, the dispute should be dealt with and if the issue (whether service or product related) cannot be fixed, then the most convenient approach would be to negotiate a settlement and look for partial payment. From a commercial point of view, the creditor should try to solve the dispute, especially if creditor and debtor have the intention to continue working together and doing business.

What to do if a company is insolvent

If a company in Latin America is insolvent, whether in bankruptcy or administration, or any similar or comparable situation, then the likelihood that the creditor will be paid is limited. For each country, the formal procedures differ, and also international B2B claims can be included in insolvency procedures. However, as these usually are very long lasting and hence come with potentially relatively high (legal) costs, it might not be attractive for foreign creditors to further pursue if a debtor in Latin America is insolvent.

As legal enforcement of international B2B claims in Latin America is unattractive, unpractical and often, impossible, the focus for debt collection should at all times be on amicable collections. Amicable solutions include the objective to look for full payment, to negotiate a payment plan with the debtor, or to otherwise look for a settlement (leading to partial payment). From a commercial perspective, it is important for a creditor to try to solve disputes with debtors and to look for a settlement, if possible. If a debtor company in Latin America, however, is insolvent, usually there is little that can be done on behalf of the creditor, to achieve payment.

If you are doing international business in Latin America and you are interested in learning more on collecting international B2B claims, please reach out to Cobroamericas, on Linked-In or follow us on Twitter.

To participate in conversations about debt collection in Latin America please join the Linked-In Group Debt Collection Latin America.

Debt Collection for Commercial Transactions in Latin America

To collect overdue payments owed in connection with a commercial transaction in Latin America, it is important to follow a step-by-step approach. Below are the stages of debt collection the foreign creditor should take into consideration.

Amicable debt collection for commercial transactions

The first step is to attempt to collect the debt amicably, generally on a contingency basis. This means that the foreign creditor will contract a debt collection agency. The creditor does not run any financial risk, as the agency will only charge commission in case of success. For the debtor, the involvement of a debt collector may imply to push needed towards a solution, which is full payment or a payment plan. Usually, a debt collection agency takes a couple of months to attempt to obtain an amicable solution for the overdue payment on the commercial transaction.

Mediation in case of disputes

Latin America commercial mediationIf amicable collections do not achieve payment or otherwise lead to a settlement, a pre-legal option could be mediation. If there is contact with the debtor but debtor does not pay the overdue amount, either because there is a dispute with respect to the quality of products or services delivered by the creditor in connection with the commercial transaction, there might be an interest on both sides to mediate and look for an alternative settlement. This may especially be the case if both parties have a continuous commercial relationship which they desire to maintain.

Claim assessment for the foreign creditor

In case amicable debt collection and if applicable, mediation do not result in payment, a payment plan or otherwise a settlement agreement between creditor and debtor, it is important to assess the claim for potential legal steps. At this stage, the presence and quality of a contract, order forms, confirmations, correspondence between the parties, and invoices regarding the commercial transaction is vital to determine legal potential.

Credit registration in Latin America

As a step in between pre-legal and legal, and to put pressure on the debtor, in some countries in Latin America it is possible to formally register the foreign debt at a public, semi-public or private watch dog. This can be a trigger for the debtor to pay or to come (or return) to the negotiation table.

Legal proceedings to enforce payment

Latin America commercial transaction legalShould credit registration not work either, or not be a possibility, and should the claim be solid enough to enforce payment of the overdue amount legally, then the final alternative to collect a debt on behalf of a foreign creditor is to start legal proceedings against the debtor. Legal proceedings should be started in the country of residence of the debtor. In addition to an assessment whether the claim is solid, creditor must also look if it is worth proceeding from a cost-perspective.

The stages a foreign creditor should follow to collect an overdue payment on a commercial transaction in Latin America are: amicable debt collection, mediation, claim assessment, credit registration, and legal proceedings.

David Zannoni

If you are a foreign creditor and interested in learning more on debt collection in Latin America for commercial transactions, please reach out to Cobroamericas, on Linked-In or follow us on Twitter.

To participate in conversations about debt collection in Latin America please join the Linked-In Group Debt Collection Latin America.

Collecting Bad Debt in Latin America

Circumstances Affecting Collections Beyond Creditor’s Control

Collecting bad debt in Latin America often represents a challenge for foreign businesses.

There are several reasons to mention why businesses stop paying, which may be considered universal: bad economic circumstances, a company having liquidity issues, bad luck in business, mismanagement, and even bad intentions can be reasons causing bad debt anywhere one goes and does business.

However, there are a couple of circumstances which, maybe not exclusive to Latin America, do periodically characterize Latin American societies and economies, and therefore, affect businesses and ultimately also the collection of bad debt.

We will briefly discuss four of such circumstances.

Political Instability Causing Economic & Monetary Issues

Although this may vary substantially from country to country, and even within countries from region to region, political instability has been a common phenomenon in Latin America. Political instability may be visible through weakness of institutions, corruption, and policies imposed by the State contrary to the interests of the population, resulting in amongst others a lack of diversity in economy, underdevelopment in rural regions and impoverished urban areas, insufficient infrastructure, currency exchange controls and import / export tariffs in an attempt to protect the own economy. Political instability generally tempers economic growth and development and foreign investment. All these elements ultimately negatively affect the position of businesses, whether these are big corporations or small enterprises. Payment behavior may deteriorate and collecting bad debt may become more difficult. Countries like Argentina, Brazil, Venezuela, Mexico, Colombia, Ecuador, amongst others, have all been faced with some of these or similar issues.

Malfunctioning Judicial Systems Limiting Recovery of Bad Debt

Apart from a few exceptions, the legal systems in Latin America can in general be considered little accessible to foreign creditors.

From a foreign creditor’s point of view, judicial systems in Latin America can be perceived as complex, inefficient, closed minded, and incompatible. Often, there are no treaties in place between countries. This means that cross boarder issues are subject to local law in Latin America and the debtor’s jurisdiction applies if a foreign creditor wants to enforce payment of bad debt legally. In practice however, foreign claims are tough to enforce reducing the likelihood for collection and leaving the creditor with high, often unrecoverable legal expenses.

Infrastructure Missing Key Elements for Doing Business Globally

In several regions of Latin America, businesses are faced with a lack of infrastructure. This may include proper roads or airports, but also limited banking services and payment options, undeveloped educational institutions and professional support services, weak or absent authorities and limited or no access to the internet. Such business may be perceived as remote and difficult to reach for foreign creditors. Collecting bad debt can become a real challenge if debtors in more remote areas do not cooperate.

(Semi-)Informal Character of Business Preventing Sustainable Growth

The nature of doing business in Latin America can be very informal. This may allow a business to function locally but can cause issues when business is done internationally. For foreign creditors, the shadow side of the level of informality of businesses in Latin America can include: questionable financial management on the side of the debtor, limited options for local businesses to pay internationally, limited or no access for debtors to credit, and the fact that many business with a high level of informality are run based on a day to day strategy, without a long term vision. Because of this, the debtor lacks sustainable growth, which ultimately affect the creditor’s likelihood to collect bad debt.

In this post I mentioned four circumstances that may negatively affect collection of bad debts and which are typical for doing business in Latin America: economic downfall caused by political instability, malfunctioning of the judicial system, a lack of infrastructure, and the often (semi-)informal character of businesses in Latin America.

David Zannoni

 

If you are interested in learning more about typical circumstances that may negatively affect collecting bad debt in Latin America, please reach out to Cobroamericas, on Linked-In or follow us on Twitter.

To participate in conversations about debt collection in Latin America please join the Linked-In Group Debt Collection Latin America.

International Debt Recovery: Mediation

When negotiations about an international debt have not lead to an agreement, the parties may end up in a situation where either the international debt remains unsettled (and practically, the debt will become a write off for the claimant), or the claimant will have to start legal proceedings and go to court over the claim.

Debt unsettled or legal proceedings? Think twice

mediation and debt recoveryThese alternatives are rather unattractive: the creditor will not like to remain with an unpaid or unsettled debt, and eventually, a write off, and the debtor might not like this situation either as it stands in the way of recovering the commercial relationship with creditor and it may harm debtor’s reputation in the business. And none of the parties will look forward to legal proceedings given the costs and time involved.

Mediation as alternative in international debt recovery

A serious alternative is mediation: provided that both parties agree, creditor and debtor appoint an independent mediator who will assess the situation regarding the international debt and work towards a mutually acceptable settlement agreement. Recommendable is to appoint a mediator with broad experience in and knowledge of international debt recovery.

The mediation process: sessions with creditor and debtor

mediation debt recoveryDuring the mediation process, the mediator will have joint sessions with creditor and debtor, and / or separate sessions with each of them, to understand the situation regarding the international debt or the dispute from each side’s point of view, and to learn about what each of the parties propose as solutions for the situation or the dispute. The sessions can with today’s technology, and depending on the size of the international debt, be organized in person or by teleconference.

Working towards a settlement for the international debt

mediation debt collectionThe next stage is what is defined in mediation literature as “caucuses”: the mediator will start separate sessions and discussions with each of creditor and debtor to learn about their core interest, which elements of a settlement would be acceptable, and which are “no-go’s” or “deal breakers” for either creditor or debtor towards settlement of the international debt. The mediator will subsequently go back and forth between creditor and debtor with ideas, suggestions and proposals with the aim of finding a mutually acceptable settlement agreement. The mediator’s leverage here is that, although a settlement agreement will never 100% satisfy any of the parties, the alternatives – an unsettled international debt and loss of the commercial relationship and harm to a business reputation, or expensive and time consuming legal proceedings, are even less tempting.

Consider mediation if all amicable options run out

Have you considered mediation as an alternative during international debt recovery, when your debtor is not paying, or if there is a dispute between debtor and creditor? If all negotiations between creditor and debtor fail, mediation might be the only serious or costs efficient alternative to an unsettled international debt (and at some point, a certain write off for the creditor) or legal proceedings.

If you are interested in learning more about mediation solutions for international debt recovery, please connect with Cobroamericas on Linked-In or follow us on Twitter.

To participate in the conversation about debt collection in Latin America please join the Linked-In Group Debt Collection Latin America.

International Debt Recovery: Negotiation

Negotiation is an essential component of international debt recovery. The international debt collector will often need to negotiate in order to collect (part of) a debt. Below we are discussing seven elements of negotiation during international debt recovery which we believe are essential for achieving a solution which is satisfactory to your client, the creditor.

Understand the circumstances of the international debt

international debt recovery financial issuesBefore you start negotiating, be sure you understand the circumstances of the debt. Why does debtor not pay? Is the creditor’s claim disputed or acknowledged? Does debtor have financial issues, short-term or long-term? Are financial issues business-related, sector-related or because of domestic economic, social, political or monetary problems (currently Brazil with an economy in regression, or several other Latin American countries like Colombia, Mexico and again Brazil who are dealing with heavy currency devaluations)? Can debtor not pay because they are subject to foreign currency controls (like Argentina or Venezuela)? Which alternatives do you possibly have if you do not accept to negotiate the international debt (insistence on full and immediate payment, legal proceedings to enforce payment, or a write off and end of commercial relationship)?

Set goals: what do you want to achieve with negotiation?

Once you understand the circumstances of the debt, define what your goals are during the debt recovery process. A payment plan or a settlement, or a combination? (partial) waiver of debt in exchange for return of goods? Which target amounts or percentages will you go for and what is the very minimum you will accept for settlement or instalments?

Be realistic about chances of debt recovery

When you set your goals for debt recovery and your negotiations with debtor, be realistic about what can be achieved. What may be realistic is defined by the circumstances of the debt, how much flexibility creditor shows, your negotiations skills and to what extent you can convince debtor but also creditor. Chances for success for negotiations in international debt recovery increase substantially if you are able to find the right balance between what the circumstances of the debt allow you to do, and how far creditor is prepared to go to recover (part of) the international debt.

Show empathy for the debtor

During negotiations with the aim to collect an international debt, it is important that you show empathy for the debtor. You have to understand debtor’s position and take concerns, issues, problems and proposals seriously, and give debtor the feeling that you are negotiating with debtor with the aim to find a mutually satisfactory solution for the international debt. You will have to do this without ever abandoning your position as representative of the creditor, and keeping in mind always what would be the best outcome for the creditor.

Be straight in your communication with creditor

international debt collection communication skillsEqually as important as showing empathy for the debtor, is being straight in your communication with creditor. Never forget: you represent the creditor and your ultimate goal should be to gain as possible as possible from your negotiations during international debt recovery. From your negotiations, case by case, you will learn what the best possible achievement will be during the international debt recovery process. You should constantly communicate with creditor; explain to creditor the steps you are taking. What according to you is possible to achieve under the circumstances, and why. And which goals you set when you negotiate with debtor about the international debt.

Be settlement-minded during negotiations

Having read the above, it goes almost without saying that you should be settlement-minded when you negotiate during the international debt recovery process. You may often take as a fact that you will never get a hundred percent of what you are claiming on behalf of creditor. At the same time, you should want to achieve as much as possible. Perhaps that “as much as possible” is a settlement amount of 80%. Sometimes it will be 50%, or 25%.  Or a payment plan of six months, twelve months, or five years. The definition of a satisfactory settlement during international debt recovery is, as already pointed out above, determined by the circumstances of the debt, and the flexibility of the creditor.

Close a clear agreement about the international debt

international debt recovery agreementOnce you have reached a settlement, or you agreed with creditor and debtor on a payment plan, put the agreement on paper and make sure what the terms and conditions are, what is expected from debtor, and what debtor may expect from the creditor and from you if the agreement is honored and also when the agreement is not honored. It is important to give and take. Meaning that if debtor complies with the settlement payment or payment plan, he or she receives an official release letter and perhaps the door is open again for business between creditor and debtor. On the other hand, if debtor does not honor the agreement, it may mean that the full debt is claimed again by creditor, legal proceedings against debtor are started (if possible at all) or the commercial relationship between creditor and debtor is fully terminated.

In this article we discussed seven elements of negotiation during international debt recovery which we believe are essential: understanding the circumstances of the international debt,

Setting your goals as to what do you want to achieve with negotiation, being realistic about chances of debt recovery, showing empathy for the debtor, being straight in your communication with creditor, being settlement-minded during negotiations, and closing a clear agreement about the international debt.

If you are interested in learning more about how to negotiate in order to recover an international debt, please connect with Cobroamericas on Linked-In or follow us on Twitter.

To participate in the conversation about debt collection in Latin America please join the Linked-In Group Debt Collection Latin America.