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.

On June 6, 2012, Bankruptcy Judge Martin Glenn of the U.S. Bankruptcy Court for the Southern District of New York approved a $2.875 million key employee incentive plan (“KEIP”) in the Velo Holdings bankruptcy cases over the objection of the U.S. Trustee finding that it was primarily incentivizing and a sound exercise of the debtors’ business judgment.  Inre Velo Holdings Inc., Case No. 12-11384 (MG), 2012 Bankr. LEXIS 2535 (Bankr. S.D.N.Y. 2012).  The decision follows well-settled law in the Southern District and Delaware regarding approval of KEIPs.

On May 25, 2012, Judge Allan L. Gropper of the United States Bankruptcy Court for the Southern District of New York approved a motion to compel the production of certain documents under section 1521 of the Bankruptcy Code.  In his decision, Judge Gropper also suggested that the broad discovery provisions of Bankruptcy Rule 2004 may apply to chapter 15 discovery requests, but stopped short of making such a ruling.  In re Millennium Global Emerging Credit Master Fund Limited, Case No. 11-13171 (ALG), (Bankr. S.D.N.Y May 25, 2012).

On May 4, 2012 Judge Kevin J. Carey of the U.S. Bankruptcy Court for the District of Delaware held that a claim against a debtor’s estate, transferred to a third party, is subject to the same infirmities as in the hands of the original holder of the claim.  In re KB Toys, Inc., — B.R. —-, 2012 WL 1570755, at *11 (Bankr. D. Del. 2012).  Judge Carey’s opinion diverged from, and criticized, the decision of the U.S. District Court for the Southern District of New York in Enron Corp. v. Springfield Assocs., L.L.C., 379 B.R. 425 (S.D.N.Y.

In the W.R. Grace bankruptcy, the United States Court of Appeals for the Third Circuit recently reaffirmed its prior rulings on the controversial issue of a bankruptcy court’s power to enjoin actions by third parties against non-debtors.1 Resting on prior precedent, the Third Circuit held that bankruptcy courts lack subject matter jurisdiction to enjoin third party actions that have no direct effect upon the bankruptcy estate.