The Supreme Court’s recent decision in Mission Product Holdings, Inc., v. Tempnology, LLC  clarifies that a debtor-licensor’s rejection of a trademark license under § 365(a)  of the Bankruptcy Code is treated as a breach, and not as a rescission, of that license under § 365(g).  The Court held that if a licensee’s right to use the trademark would survive a breach outside of bankruptcy, that same right survives a rejection in bankruptcy.

In Swiss Cosmeceutics (Asia) Ltd [2019] HKCFI 336, Mr Justice Harris of the Hong Kong Court of First Instance declined to wind up a company despite it failing to establish a bona fide defence on substantial grounds. Mr Justice Harris commented on the difficulties presented by sporadic record keeping, and reiterated the principle that the burden of proof lies with the company to demonstrate a bona fide defence on substantial grounds, despite the existence of anomalies in the petitioner’s claim.

Facts

On January 17, 2019, the United States Court of Appeals for the Fifth Circuit (the “FifthCircuit”) issued a decision in In re Ultra Petroleum Corp. that could have significant implications for creditors seeking payment of contractual make-whole amounts and post-petition interest from chapter 11 debtors.[1]

In a highly international cross-border restructuring, the High Court of Hong Kong has refused to assist the New York-based Chapter 11 trustee of a Singaporean subsidiary of the Cayman-incorporated Peruvian business China Fishery Group (“CFG”).

Singapore’s new (the Omnibus Bill) was passed by parliament on 1 October 2018 and is expected to come into force later this year or in early 2019.

The Omnibus Bill, which was introduced to parliament on 10 September 2018, consolidates Singapore's corporate and personal insolvency and restructuring laws into a single enactment. It also generally updates the insolvency legislation and introduces a significant number of new provisions, particularly in respect of corporate insolvency.

On 12 September 2018, the High Court of Australia (High Court) gave judgment in the case of Mighty River International Limited v Hughes (Mighty River).1 In that decision, the High Court (by a 3:2 majority) held that a “holding” deed of company arrangement (DOCA) is valid.

In brief

On 20 June 2018, the Indian Government released a suggested draft chapter on cross-border insolvency to be included into the Insolvency & Bankruptcy Code, 2016 (Code). This addresses a missing link in the ambitious reforms of the Indian insolvency framework and is to be welcomed.

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 June 27, 2018, Judge Kevin Carey of the United States Bankruptcy Court for the District of Delaware ruled that a dismissal order in a bankruptcy case could provide for exculpation of the estate fiduciaries and their respective professionals. The ruling is a welcome result for all estate fiduciaries whose tireless efforts during a complex bankruptcy case fail to culminate in an approved plan of reorganization. Morrison & Foerster LLP represents the debtors in the matter.

Background

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.