Sanctions regulations won't prevent administration orders but may affect timings and require undertakings

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

How can creditors reduce the risk of a fixed charge being characterised as floating?

The determination as to whether a charge over a valuable asset is fixed or floating can be crucial to a creditor's recovery in an insolvency. To have two cases over the course of little more than a year providing detailed analysis of the nature of fixed and floating charges is indeed a treat. Are there any practical steps creditors can take to reduce the risk of a fixed charge being characterised as floating?

Fluctuating assets?

Consent of secured creditors with no remaining economic interest is not needed to extend the administration of a company

Osborne Clarke recently advised the administrators in two reported High Court cases which have confirmed that a "secured creditor" under section 248 of the Insolvency Act 1986 should be construed in the present tense, retaining the status of secured creditor only if it is still owed a debt by the company in administration.

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.

Early contingency planning can significantly reduce the shock of customer or supplier insolvency

In this edition of our distressed supply chains series, we consider the three key factors in contingency planning for potential insolvency in the supply chain, being (i) early planning analysis and due diligence, (ii) regular monitoring of key supply chain relationships; and (iii) taking early action if something goes wrong.

The Insolvency Service is satisfied that the restructuring plan and moratorium processes are broadly meeting their policy objectives – and that ipso facto clauses are likely to be used more in future

In brief

The courts were busy in the second half of 2021 with developments in the space where insolvency law and environmental law overlap.

In Victoria, the Court of Appeal has affirmed the potential for a liquidator to be personally liable, and for there to be a prospective ground to block the disclaimer of contaminated land, where the liquidator has the benefit of a third-party indemnity for environmental exposures.¹

In brief

Australia's borders may be closed, but from the start of the pandemic, Australian courts have continued to grapple with insolvency issues from beyond our shores. Recent cases have expanded the recognition of international insolvency processes in Australia, whilst also highlighting that Australia's own insolvency regimes have application internationally.

Key takeaways

In brief

With the courts about to consider a significant and long standing controversy in the law of unfair preferences, suppliers to financially distressed companies, and liquidators, should be aware that there have been recent significant shifts in the law about getting paid in hard times.