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Corporate minds do not all think alike: The Supreme Court affirms a purposive approach to the corporate attribution doctrine

Two recent Supreme Court of Canada decisions demonstrate that the corporate attribution doctrine is not a one-size-fits-all approach.

Canada, Company & Commercial, Insolvency & Restructuring, Litigation, McCarthy Tétrault LLP, Supreme Court of Canada
U.S. Supreme Court Bankruptcy Update

The U.S. Supreme Court handed down three bankruptcy rulings to finish the Term ended in July 2024. The decisions address the validity of nonconsensual third-party releases in chapter 11 plans, the standing of insurance companies to object to "insurance neutral" chapter 11 plans, and the remedy for overpayment of administrative fees in chapter 11 cases to the Office of the U.S. Trustee. We discuss each of them below.

U.S. Supreme Court Bars Nonconsensual Third-Party Releases in Chapter 11 Plans

USA, Insolvency & Restructuring, Litigation, Jones Day, Bankruptcy, Internal Revenue Service (USA), Supreme Court of the United States
There’s Something About (Hail) Mary: Appeals of Sale Processes and Pre-Receivership Sale Agreements

Court approval of a sale process in receivership or Bankruptcy and Insolvency Act (“BIA”) proposal proceedings is generally a procedural order and objectors do not have an appeal as of right; they must seek leave and meet a high test in order obtain it. However, in Peakhill Capital Inc. v.

Canada, Ontario, Insolvency & Restructuring, Litigation, McCarthy Tétrault LLP
Good things take time: Parliamentary Joint Committee delivers report on Australia’s corporate insolvency framework

The Parliamentary Joint Committee on Corporations and Financial Services (the Committee) has delivered its report following an inquiry into the “effectiveness of Australia’s corporate insolvency laws in protecting and maximising value for the benefit of all interested parties and the economy”.

Australia, Insolvency & Restructuring, Herbert Smith Freehills LLP, Insolvency, Corporations Act 2001 (Australia)
Past its peak: the High Court of Australia confirms the abolition of the peak indebtedness rule for unfair preferences

In the much-anticipated decision of Bryant v Badenoch Integrated Logging Pty Ltd [2023] HCA 2 (Badenoch (HCA)), the High Court of Australia (the HCA) has now confirmed that the peak indebtedness rule may not be used when assessing the quantum of an unfair preference claim arising from a continuing business relationship.

Australia, Insolvency & Restructuring, Litigation, Trade & Customs, Herbert Smith Freehills LLP, Corporations Act 2001 (Australia)
First decision on Australia’s ipso facto stay in voluntary administration

The Federal Court of Australia (Court) has handed down the first reported decision on the ipso facto stay provisions contained in the Corporations Act 2001 (Cth) (Act).

Australia, Insolvency & Restructuring, Litigation, Herbert Smith Freehills LLP, Corporations Act 2001 (Australia)
Atlas shrugged: the limits of an administrator’s lien over secured property

Chief Justice Hammerschlag, sitting in the New South Wales Supreme Court (the Court), has delivered a judgement of importance to secured creditor and insolvency practitioners alike in Volkswagen Financial Services Australia Pty Ltd v Atlas CTL Pty Ltd (Recs and Mngrs Apptd) (In liq) [2022] NSWSC 573 (Atlas).

Australia, New South Wales, Insolvency & Restructuring, Litigation, Herbert Smith Freehills LLP, Insolvency, Corporations Act 2001 (Australia), New South Wales Supreme Court
Parliamentary inquiry into corporate insolvency in Australia

The Parliamentary Joint Committee on Corporations and Financial Services (the Committee) has commenced an inquiry into the “effectiveness of Australia’s corporate insolvency laws in protecting and maximising value for the benefit of all interested parties and the economy”.[1]

Australia, Corporate Finance/M&A, Insolvency & Restructuring, Herbert Smith Freehills LLP, Coronavirus, Insolvency, Australian Taxation Office, Australian Securities and Investments Commission, Personal Property Securities Act 2009 (Australia), Australian Securities and Investments Commission Act 2001
Hong Kong Court of Appeal considers the effect of exclusive jurisdiction clause on bankruptcy proceedings

A recent Hong Kong Court of Appeal decision examined a creditor’s right to commence bankruptcy/insolvency proceedings where the petition debt arises from an agreement containing an exclusive jurisdiction clause in favour of a foreign court: Guy Kwok-Hung Lam v Tor Asia Credit Master Fund LP [2022] HKCA 1297.

Hong Kong, Arbitration & ADR, Insolvency & Restructuring, Litigation, Herbert Smith Freehills LLP
Sending disclaimer to the sawmill: A liquidator’s power to disclaim land subject to environmental liabilities following the Australian Sawmilling case

In The Australian Sawmilling Company Pty Ltd (in liq) v Environment Protection Authority [2021] VSCA 294 (Australian Sawmilling), the Victorian Supreme Court of Appeal (VSCA) dismissed an appeal by the liquidators of The Australian Sawmilling Company Pty Ltd (TASCO) against a decision of Garde J of the Victorian Supreme Court (VSC) setting aside the liquidators’ disclaimer of land subject to significant environmental ‘clean up’ costs (Primary Judgment).

Australia, Victoria, Capital Markets, Insolvency & Restructuring, Litigation, Herbert Smith Freehills LLP, Australian Securities and Investments Commission, Corporations Act 2001 (Australia), Environment Protection Act 2017 (Victoria) (Australia)