On 13 July 2017, the Belgian parliament adopted an Act compiling the existing Belgian insolvency legislation into one insolvency code (the “Insolvency Code“). The Insolvency Code will become law as from its ratification by the King and publication in the Belgian State Gazette, both of which being no more than administrative formalities. The Insolvency Code will apply to any insolvency proceeding opened on or after 1 May 2018.

On 13 July 2017, the Belgian parliament adopted an Act compiling the existing Belgian insolvency legislation into one insolvency code (the "Insolvency Code"). The Insolvency Code will become law as from its ratification by the King and publication in the Belgian State Gazette, both of which being no more than administrative formalities. The Insolvency Code will apply to any insolvency proceeding opened on or after 1 May 2018.

On 11 August 2017, a new Act was adopted amalgamating the existing Belgian insolvency legislation into one insolvency code (the "Insolvency Code"). The Insolvency Code will apply to any insolvency proceeding opened on or after 1 May 2018.

The vast majority of the changes resulting from the Insolvency Code are technical in nature. And the most publicised proposal, the introduction of a "silent" or "pre-pack" bankruptcy, was abandoned at the last minute.

The Belgian Act of 11 July 2013 on security over movables (the “Security over Movables Act”) will modernise Belgium’s legislation in respect of security over movables. Most notably, the Security over Movables Act is expected to have a particularly beneficial effect on borrowing base/asset-based lending in Belgium.

Under the current legislation, the creation of a possessory pledge (vuistpand/gage avec dépossession) is subject to various restrictions. For example:

The Belgian Act of 11 July 2013 on security over movables (the Security over Movables Act) will modernise Belgium's legislation in respect of security over movables. On 7 November 2016, a draft bill has been published postponing the entry into effect of the Security over Movables Act until 1 January 2018 at the latest. In addition to the postponement, the draft bill also fine-tunes certain technical aspects of the Security over Movables Act to achieve maximum legal certainty and practical usefulness.

Simple retention of title clauses are commonplace and generally effective in contracts for the sale of goods. However, extending their effect to the proceeds of sale of such goods requires careful drafting.

The Court of Appeal has provided some further clarity around the creation and effects of fiduciary obligations in relation to such clauses.[1]

Proceeds of sale clauses

The Residential Tenancies (Amendment) Act 2015 has undoubtedly strengthened the position of tenants and increased the responsibilities and challenges facing receivers appointed by secured lenders over residential investment properties. While the added protections for tenants are to be welcomed, certain provisions of the Act result in relatively onerous obligations on receivers who are already faced with practical difficulties when seeking to deal with and realise the secured asset in accordance with their duties.

The High Court has reiterated that cross-examination will not generally be permitted on an interlocutory application, or where there is no conflict of fact on the affidavits.

In McCarthy v Murphy,^[1] the defendant mortgagor was not permitted to cross-examine the plaintiff (a receiver) or a bank employee who swore a supporting affidavit.

Background

Two recent judgments have brought further clarity in relation to the rights acquirers of loan portfolios to enforce against borrowers:

In AIB Mortgage Bank -v- O'Toole & anor [2016] IEHC 368 the High Court determined that a bank was not prevented from relying on a mortgage as security for all sums due by the defendants, despite issuing a redemption statement which omitted this fact.

In order to understand this case, it is necessary to set out the chronology of events: