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.

前言

《中华人民共和国企业破产法》（“《破产法》”）在公平清理债权债务、维护社会经济秩序等方面起到了重要的作用。但《破产法》下限制表决权的条款也因缺乏统一具体的适用标准——尤其是庭外程序表决效力的延伸、职工债权人和出资人表决权规范缺失等——而导致问题层出不穷，本文拟探其详并予建议。

一、破产表决权限制条款的适用问题

（一）禁反言规则在破产程序中的适用

《全国法院民商事审判工作会议纪要》（以下简称“《九民纪要》”）第一百一十五条认可了庭外重组协议在破产重整中的效力，但是在司法实践中仍然存在诸多问题。

第一，《九民纪要》第一百一十五条明确的是庭外重组与庭内重整程序的衔接。从文义解释角度，该条仅能适用于最终转化为破产重整的庭外重组程序。而庭内企业拯救程序不仅包括破产重整程序，同时也包括破产和解程序。庭外债务重组协议的效力能否延伸到破产和解程序中仍有待进一步明确。

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

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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.