过去数年，打包重组（Repackaging）结构盛行，中资金融机构寻求使用其作为便利进入市场的工具，并为客户提供创新的融资方案。
中国房地产行业是最广泛使用该结构的行业之一，该行业在2021年高开低走、大起大跌，并于最后一季急挫。市场预期房地产行业在2022年仍将困难重重。
在此背景下，我们察觉到安排人（Arranger）、中国房地产企业及投资者正在寻求对现有的打包重组交易进行结构调整（restructure）的机会（包括提前终止、展期、增加额外增信措施、置换等安排）。此外，我们还观察到，市场对与中国非房地产行业主体（如融资租赁公司、金融科技公司）相关的资产支持交易的兴趣有所增加。
我们将于本文探讨部分有关修订或提前终止打包重组交易的主要问题，并且概述我们在市场中观察到的典型案例和未来趋势。
温故知新：打包重组交易的基本结构
许多较为简单的打包重组交易的结构一般具有下列特点：
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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
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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.
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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.
In brief
The Federal Court has ordered that an insolvency professional be appointed to act as a referee and to decide questions of insolvency in relation to a series of alleged unfair preferences, rather than have the judge undertake that task.
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