A company voluntary arrangement (CVA) is a tool which has been widely utilised by companies seeking to restructure and compromise liabilities.
In recent years CVAs have been in the limelight because of attacks by landlords who feel that they have been unfairly prejudiced by the CVA terms. Largely, challenges such as those to the Regis and New Look CVAs have been unsuccessful, but arguments about unfair prejudice based on “vote swamping” were left open for future debate.
Where a commercial property is sold by a receiver or insolvency practitioner (IP), VAT must be charged on the sale if the owner had exercised and properly notified an option to tax (OTT) in respect of the property. The IP acting on behalf of the seller needs to establish whether an OTT has been made and notified so that VAT is charged , if needed. This can be difficult if company records are in disarray, directors of the insolvent company are non-cooperative and/or the IP or receiver has limited knowledge of the property and company.
Following the sanctioning of the Good Box restructuring plan (RP) it seems the answer is yes. This might sound surprising to those familiar with schemes of arrangement, because that outcome is at odds with the long-standing decision in Re Savoy Hotels.
For those less familiar with schemes and scheme case law, the court declined to sanction the Savoy scheme because the company did not approve it, consequently the judge found that the court had no jurisdiction to sanction it.
はじめに
最近、イギリス（United Kingdom、以下同じ）最高裁判所のある判決では、破産した会社または破産に近い会社の取締役が債権者の利益を考慮に入れる義務が明確になりました。BTI 2014 LLC v Sequana SA [2022] UKSC 25はイギリスの会社法に関連していますが、英連邦全体、特にオフショア法域での破産における取締役義務についての解釈などに、広範囲にわたる影響を及ぼします。
Sequana
簡介
在最近英国最高法院的一项判决中，资不抵债或接近资不抵债的公司的董事有责任考虑债权人的利益。虽然 BTI 2014 LLC v Sequana SA [2022] UKSC 25 涉及英国公司法，但它将对理解英联邦地区清盘情况下的董事职责产生深远影响，尤其是在离岸司法管辖区。
Sequana
普通法和 2006 年《公司法》均规定公司董事有义务以诚信行事，以促进公司的成功。传统观点认为，公司利益等同于公司股东的利益。近几十年来，法律开始承认，当公司濒临破产或资不抵债时，公司债权人的利益可能会受到公司管理层的影响。因此，法律开始要求董事在破产情况下履行对公司的信托义务时考虑债权人的利益。这条被称为 West Mercia 规则（源自 West Mercia Safetywear Ltd (in liq) v Dodd [1988] BCLC 250）的规则从未在案例中得到一致解释，而法院使用的语言经常混淆规则的性质及其产生的确切情况。
Introduction
In a recent decision, the United Kingdom Supreme Court clarified the duty of directors of insolvent or near insolvent companies to consider the interests of creditors. While BTI 2014 LLC v Sequana SA [2022] UKSC 25 relates to company law in the United Kingdom, it will have far reaching implications on the understanding of directors' duties relating to insolvency across the commonwealth and, in particular, offshore jurisdictions.
Sequana
It is difficult to predict what 2023 might hold for businesses in the UK. Given the difficult economic environment, many will already be facing a challenging start to the year. Although the challenges of the pandemic (such as lock downs) have gone, others have materialised. Energy price hikes and inflation rises continue to make trading conditions tough.
Can a Company Voluntary Arrangement (“CVA”) complete, but still remain in place and bind creditors?
The simple answer is yes; but it does require (a) the terms of the CVA to be carefully drafted to allow notice of completion to be filed before the end of the CVA term; (b) compliance with the terms of the CVA, and (c) careful consideration of the position of the supervisors, creditors and company.
Following a long wait of 18 months, the Supreme Court has today confirmed that the appeal of the decision in BTI –v- Sequana is unanimously dismissed.
The key question that many of us have been waiting for the answer to is: Does the creditor duty set out in s172(3) of the Companies Act 2006 exist and if so, when is it engaged?