在经济下行的时候，原来一些质地不错的企业也会陷入困境。对于困境企业而言，通过破产重整焕发生机，也许是最后一根救命稻草；对于投资人而言，未来真正的赚钱机会，也将出现在更多、更复杂的破产重整项目中。今天，我想跟大家谈谈破产重整投资的趋势、挑战与未来。

一、重整投资的趋势

首先，我们来谈谈重整投资已经展现出的四个变化趋势。

第一个趋势，是从被动投资到主动投资。

什么是被动投资？以往一些破产项目中的重整投资人，往往本身就是破产企业的债权人，他们随着陷入危机的破产企业一起被困在了“水中”，不得不通过参与重整投资寻求最后的“上岸”机会，比较典型的就是一些作为困境企业债权人的AMC公司。

什么是主动投资？这几年里，逐渐有一些“岸上的人”也瞄准了重整投资领域。“岸上的人”，是与困境企业没有关系的外部投资人，他们没有受到困境企业的牵连，而是将重整投资视作一个宝贵的商业机会，主动参与其中。这样的“岸上投资人”，既包括产业投资人，也包括财务投资人。

In 2017, the Quebec Court of Appeal had issued a decision in the matter of Arrangement relatif à Métaux Kitco inc., 2017 QCCA 268 ("Kitco") to the effect that the Companies' Creditors Arrangement Act (the "CCAA") prohibited the exercise of all rights of set-off between pre-filing and post-filing claims.

The Bankruptcy Code confers upon debtors or trustees, as the case may be, the power to avoid certain preferential or fraudulent transfers made to creditors within prescribed guidelines and limitations. The U.S. Bankruptcy Court for the District of New Mexico recently addressed the contours of these powers through a recent decision inU.S. Glove v. Jacobs, Adv. No. 21-1009, (Bankr. D.N.M.

On July 28, 2021, the Supreme Court of Canada (the "SCC") released its decision in Canada v Canada North Group Inc.^[1] (2021 SCC 30) confirming that court-ordered super-priority charges ("Priming Charges") granted pursuant to the Companies' Creditors Arrang

Many describe the United States as Canada's most important trade partner. Cross-border insolvency proceedings between the two jurisdictions are frequent and the recognition by one country's court of the other's bankruptcy orders is an important tool in facilitating the restructuring of companies with operations that spread across North America. A recent decision from the Ontario Court of Appeal (leave to appeal of which was denied by the Supreme Court of Canada) invites us to reflect on the delicate balance between comity for foreign orders and Canada's sovereignty over domestic laws.

In 7636156 Canada Inc. (Re)[1], the Ontario Court of Appeal ("OCA") confirmed the right of a commercial landlord to draw on a letter of credit given as security pursuant to a lease, even when the draw takes place after the termination of the lease by the tenant's trustee in bankruptcy.

In In re Smith, (B.A.P. 10th Cir., Aug. 18, 2020), the U.S. Bankruptcy Appellate Panel for the U.S. Court of Appeals for the Tenth Circuit recently joined the majority of circuit courts of appeals in finding that a creditor seeking a judgment of nondischargeability must demonstrate that the injury caused by the prepetition debtor was both willful and malicious under Section 523(a)(6) of the Bankruptcy Code.

Factual Background

In a recent decision, the U.S. Bankruptcy Court for the Southern District of New York held that claim disallowance issues under Section 502(d) of the Bankruptcy Code "travel with" the claim, and not with the claimant. Declining to follow a published district court decision from the same federal district, the bankruptcy court found that section 502(d) applies to disallow a transferred claim regardless of whether the transferee acquired its claim through an assignment or an outright sale. See In re Firestar Diamond, 615 B.R. 161 (Bankr. S.D.N.Y. 2020).

InIn re Juarez, 603 B.R. 610 (9th Cir. BAP 2019), the Bankruptcy Appellate Panel of the U.S. Court of Appeals for the Ninth Circuit addressed a question of first impression in the circuit with respect to property that is exempt from creditor reach: it adopted the view that, under the "new value exception" to the "absolute priority rule," an individual Chapter 11 debtor intending to retain such property need not make a "new value" contribution covering the value of the exemption.

Background

In In re Palladino, 942 F.3d 55 (1st Cir. 2019), the U.S. Court of Appeals for the First Circuit addressed whether a debtor receives “reasonably equivalent value” in exchange for paying his adult child’s college tuition. The Palladino court answered this question in the negative, thereby contributing to the growing circuit split regarding the avoidability of debtors’ college tuition payments for their adult children as constructively fraudulent transfers.

Background