The Court of Milan with a decision on 28 May 2014 addressed some heavily debated legal issues: the Bankruptcy Courtmay authorize the debtor to terminate credit facility agreements when the debtor submitted a pre-filing for concordato preventivo (known as “concordato con riserva”)?
The Case
Introduction
a) Continuità diretta e indiretta
Nella precedente esperienza applicativa del concordato, la conservazione dei complessi aziendali in esercizio assai di rado avveniva in capo allo stesso imprenditore, quanto piuttosto solo in via “indiretta”, attraverso la formale cessione ad un soggetto terzo, procedendo, prima del deposito della domanda di ammissione al concordato, alla concessione in affitto al fine di preservarne l'operatività.
In the current economic climate, there has been increased interest from clients and their advisers in using offshore companies in cross-border restructurings. The use of offshore companies in restructurings is often driven by tax and structuring advice, where there is a desire to continue the group operating as a going concern and to achieve a favourable outcome for creditors (usually outside of formal insolvency proceedings).
Such companies can offer a number of advantages when used as part of a restructuring plan, including:
Key Issues
The transaction documents (eg ISDA, GMRA or prime brokerage agreements) for derivatives transactions (or other transactions involving netting provisions) are usually governed by English law or New York law. However, there are a number of local law issues which our clients should consider when proposing to enter into such transactions with offshore counterparties, including the following key issues:
There has been a considerable amount of interest from clients recently on putting Jersey companies holding UK real property and other assets into English administration. Where a Jersey company and its creditors intend to rescue the company as a going concern, or English administration would achieve a better realisation for creditors than a désastre or a winding up, it may be advantageous to commence English administration.