Judges of Barcelona unify principles on certain points of insolvency law
International case law
European jurisprudence on universal and territorial procedures
Judgment of the Court of Justice of the European Union of April 18, 2024 (AIR BERLIN case)
Across 2023, the rate of corporate insolvencies in England and Wales fluctuated but trended significantly higher than the previous year, peaking in an especially tumultuous November. Turning from statistics to the news headlines, it was striking but perhaps not surprising to see many household name businesses forced into administration.
In the final statistics release of this year, the Insolvency Service confirmed that there were 2,466 registered company insolvencies in November 2023 (the December figures will be released early in 2024). Not only was this 21% higher than in the previous November, but 7% higher than the figures in October 2023.
The company insolvencies in November 2023 included:
As the ‘slow crush’ of persistently high interest rates bites, businesses of all kinds are struggling and many are reaching the point of failure, as indicated by each month’s number of creditors’ voluntary liquidations (CVLs) charting higher than the same period a year prior. The latest statistics from The Insolvency Service reveal that registered company insolvencies in October 2023 were 18% higher than in the same month in 2022.
On 26 September 2023, our Insolvency and Asset Recovery team hosted a seminar explaining the emerging and developing types of disputes focussed on insolvent estate recoveries.
Federal appellate courts have traditionally applied a "person aggrieved" standard to determine whether a party has standing to appeal a bankruptcy court order or judgment. However, this standard, which requires a direct, adverse, and financial impact on a potential appellant, is derived from a precursor to the Bankruptcy Code and does not appear in the existing statute.
The court-fashioned doctrine of "equitable mootness" has frequently been applied to bar appeals of bankruptcy court orders under circumstances where reversal or modification of an order could jeopardize, for example, the implementation of a negotiated chapter 11 plan or related agreements and upset the expectations of third parties who have relied on the order.
On June 6, 2023, the U.S. Bankruptcy Court for the Southern District of Texas confirmed the chapter 11 plan of bedding manufacturer Serta Simmons Bedding, LLC and its affiliates (collectively, "Serta"). In confirming Serta's plan, the court held that a 2020 "uptier," or "position enhancement," transaction (the "2020 Transaction") whereby Serta issued new debt secured by a priming lien on its assets and purchased its existing debt from participating lenders at a discount with a portion of the proceeds did not violate the terms of Serta's 2016 credit agreement.
Section 546(e) of the Bankruptcy Code's "safe harbor" preventing avoidance in bankruptcy of certain securities, commodity, or forward-contract payments has long been a magnet for controversy. Several noteworthy court rulings have been issued in bankruptcy cases addressing the application of the provision, including application to financial institutions, its preemptive scope, and its application to non-publicly traded securities.