Australia’s new ipso facto regime is now in effect. It stays the enforcement of contractual rights triggered upon the entry of a corporate counterparty into certain restructuring and insolvency processes. The regime will affect a broad range of contracts entered into on or after 1 July 2018; however, certain contracts and contractual rights have been excluded from the operation of the stay pursuant to statutory instruments which have just been issued.
On 16 April 2018, the Australian Federal Government (Government) launched a public consultation on proposed exceptions to the recently enacted stay on ipso facto clauses. These exceptions, which will be contained in a forthcoming declaration and regulations, will be critical to the operation of the new ipso facto regime, and its impact on stakeholders.
In the first judgment under Singapore’s new ‘super priority’ DIP financing regime, the Singapore High Court declined to grant priority status to funds to be advanced to the Attilan Group.
The Singapore regime is the first to import US Chapter 11-style DIP priority funding mechanisms into a jurisdiction with primarily English-law based corporate law and insolvency regimes.
The judgment discusses how Singapore provisions align with established principles under US Bankruptcy Code provisions and case law.
On June 6, 2017, Australian-based mining equipment supplier Emeco Holdings emerged from chapter 15 proceedings in the Southern District of New York following an Australian court’s sanctioning of the company’s scheme of arrangement.
The scheme of arrangement was a component of an innovative, comprehensive restructuring that provided for a three-way merger of three large Australian mining service companies and a restructuring of A$680 million of debt through a debt-for-equity swap, rights offering, and full refinancing.
The New South Wales Court of Appeal has, in a decision that has surprised many practitioners, dismissed an appeal which challenged the composition of classes in the creditors’ scheme of arrangement involving Boart Longyear Limited.1
In a recent landmark decision, Re Boart Longyear Limited [2017] NSWSC 567, the New South Wales Supreme Court granted orders to convene creditor meetings for two schemes of arrangement in respect of the restructuring plan of Boart Longyear Limited.
Major law changes intended to make Singapore the region’s pre-eminent restructuring and insolvency hub have now come into effect.
On 22 May 2017, the Singapore Ministry of Finance issued a notice that sections 22 to 34, 40, 41, 43, 45, 49, 50, 53(3) and (6) and 54 (the Relevant Sections) of the Companies (Amendment) Act 2017 (the Amendment Act) would come into operation on 23 May 2017.
In December 2013, the Second Circuit Court of Appeals held as a matter of first impression in Drawbridge Special Opportunities Fund LP v. Barnet (In re Barnet), 737 F.3d 238 (2d Cir. 2013), that section 109(a) of the Bankruptcy Code, which requires a debtor “under this title” to have a domicile, a place of business, or property in the U.S., applies in cases under chapter 15 of the Bankruptcy Code.
On 28 March 2017, the Australian Federal Government (Government) released draft legislation in relation to two major reforms intended to encourage turnaround, restructuring and business rescue.
The draft legislation introduces a safe harbour for directors from liability for insolvent trading, and stays the operation of ipso facto clauses where a company enters into administration or proposes a scheme of arrangement.
EXECUTIVE SUMMARY
Piggybacking off the case study involving a UK-based company in crisis after an oil spill in Nigeria, panelists Ryan Eagle of Ferrier Hodgson, Marcelo Carpenter of Sergio Bermudes Law Office, David Kelleher of Fortress Investment Group (Australia) Pty Ltd., and Fidelis Oditach of South Square discussed the key decision-making factors of investing in a similarly-situated oil and gas company. Some of the key takeaways applicable to investing in oil and gas companies generally were: