簡介
在最近英国最高法院的一项判决中，资不抵债或接近资不抵债的公司的董事有责任考虑债权人的利益。虽然 BTI 2014 LLC v Sequana SA [2022] UKSC 25 涉及英国公司法，但它将对理解英联邦地区清盘情况下的董事职责产生深远影响，尤其是在离岸司法管辖区。
Sequana
普通法和 2006 年《公司法》均规定公司董事有义务以诚信行事，以促进公司的成功。传统观点认为，公司利益等同于公司股东的利益。近几十年来，法律开始承认，当公司濒临破产或资不抵债时，公司债权人的利益可能会受到公司管理层的影响。因此，法律开始要求董事在破产情况下履行对公司的信托义务时考虑债权人的利益。这条被称为 West Mercia 规则（源自 West Mercia Safetywear Ltd (in liq) v Dodd [1988] BCLC 250）的规则从未在案例中得到一致解释，而法院使用的语言经常混淆规则的性质及其产生的确切情况。
Introduction
In a recent decision, the United Kingdom Supreme Court clarified the duty of directors of insolvent or near insolvent companies to consider the interests of creditors. While BTI 2014 LLC v Sequana SA [2022] UKSC 25 relates to company law in the United Kingdom, it will have far reaching implications on the understanding of directors' duties relating to insolvency across the commonwealth and, in particular, offshore jurisdictions.
Sequana
はじめに
最近、イギリス（United Kingdom、以下同じ）最高裁判所のある判決では、破産した会社または破産に近い会社の取締役が債権者の利益を考慮に入れる義務が明確になりました。BTI 2014 LLC v Sequana SA [2022] UKSC 25はイギリスの会社法に関連していますが、英連邦全体、特にオフショア法域での破産における取締役義務についての解釈などに、広範囲にわたる影響を及ぼします。
Sequana
On October 17, 2022, Justice Andrea Masley of the NY Supreme Court issued a decision and order denying all but one of the motion to dismiss claims filed by Boardriders, Oaktree Capital (an equity holder, term lender, and “Sponsor” under the credit agreement), and an ad hoc group of lenders (the “Participating Lenders”) that participated in an “uptiering” transaction that included new money investments and roll-ups of existing term loan debt into new priming debt that would sit at the top of the company’s capital structure.
On October 14, 2022, the Fifth Circuit issued its decision in Ultra Petroleum, granting favorable outcomes to “unimpaired” creditors that challenged the company’s plan of reorganization and argued for payment (i) of a ~$200 million make-whole and (ii) post-petition interest at the contractual rate, not the Federal Judgment Rate. At issue on appeal was the Chapter 11 plan proposed by the “massively solvent” debtors—Ultra Petroleum Corp. (HoldCo) and its affiliates, including subsidiary Ultra Resources, Inc.
On July 6, Delaware Bankruptcy Court Judge Craig T. Goldblatt issued a memorandum opinion in the bankruptcy cases of TPC Group, Inc., growing the corpus of recent court decisions tackling “uptiering” and other similar transactions that have been dubbed by some practitioners and investors as “creditor-on-creditor violence.” This topic has been a hot button issue for a few years, playing out in a number of high profile scenarios, from J.Crew and Travelport to Serta Simmons and TriMark, among others.
On August 26, 2020, the Court of Appeals for the Third Circuit held that the Bankruptcy Code does not require subordination agreements to be strictly enforced in order for a court to confirm a cramdown plan, so long as the plan does not discriminate unfairly.
On December 19, 2019, the Second Circuit held that appellants’ state law constructive fraudulent transfer claims were preempted by virtue of the Bankruptcy Code’s safe harbors that exempt transfers made in connection with a contract for the purchase, sale or loan of a security from being clawed back into the bankruptcy estate for
On January 14, 2020, the Supreme Court of the United States issued a decision resolving the question of whether a motion for relief from the automatic stay constitutes a discrete dispute within the bankruptcy that creates a basis for a final appealable ruling, or whether it simply is a controversy that is part of the broader Chapter 11 case, such that appeals would not need to be taken until the conclusion of the Chapter 11 case.