Two recent Supreme Court of Canada decisions demonstrate that the corporate attribution doctrine is not a one-size-fits-all approach.
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.
根据全国人大常委会执法检查组关于检查企业破产法实施情况的报告，党的十八大以来，随着供给侧结构性改革持续深化，加快建立和完善市场主体挽救和退出机制，加之新冠肺炎疫情对于宏观经济运行的深刻影响，我国企业破产案件数量快速上升，2017年至2020年受理和审结的破产案件分别占到《企业破产法》实施以来案件总量的54%和41%。[1]区别于传统的中小企业破产重整，大型或超大型企业集团的资产结构复杂、债务规模巨大、历史遗留问题众多，进入破产重整程序之后，如何在《企业破产法》的框架下实现资产重组与债务清偿、持续运营与杠杆处置、重整效率与债权人保护等多重利益关系的合理平衡，成为破产实务中的难点与痛点。随着2021年B集团实质合并重整案（以下简称“B集团重整案”）和海航集团等三百二十一家公司实质合并重整案（以下简称“海航集团重整案”）中信托计划的引入，破产重整程序中引入信托计划作为新型破产重整模式引起业界关注。本文将结合笔者在破产重整程序中设立信托计划的服务经验，简要介绍破产重整程序中信托计划定位与架构、信托机制与破产重整程序的衔接等相关实务难点问题，以供参考。
一. 破产重整程序中信托计划的概念和优势
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.
In brief
In brief
Creditors commonly find that their applications to wind up a company are suddenly deferred at the last minute by the appointment of a voluntary administrator. Now, in the early days of the small business restructuring (Part 5.3B) process, the courts are already grappling with those circumstances in the context of that new regime. At the time of writing1, only four restructuring appointments under Part 5.3B have been notified to ASIC. Two of them have been the subject of court proceedings.
The resulting decisions reveal:
In brief
The new small business insolvency reforms enacted by the Corporations Amendment (Corporate Insolvency Reforms) Act 2020 (Cth) (Corporations Amendment Act) - which inserts a new Part 5.3B into the Corporations Act 2001 (Cth) (Corporations Act) - are due to come into effect on 1 January 2021.
In brief
The new small business insolvency reforms enacted by the Corporations Amendment (Corporate Insolvency Reforms) Act 2020 (Corporations Amendment Act) - which inserts a new Part 5.3B into the Corporations Act 2001 (Cth) (Corporations Act) - are due to come into effect on 1 January 2021.