Manley Toys Limited once claimed to be the seventh largest toy company in the world. Due to ongoing litigation and declining sales, it entered into a voluntary liquidation in Hong Kong. On March 22, 2016, the debtor’s appointed liquidators and foreign representatives filed a motion for recognition under chapter 15 of the Bankruptcy Code. The motion was opposed by ASI Inc., f/k/a Aviva Sports, Inc. (“Aviva”) and Toys “R” Us, Inc. (“TRU”).
U.S. Bankruptcy Rule 9019 provides that on a motion brought by a trustee (and thus a chapter 11 debtor-in-possession as well) the court may approve a settlement. The prevailing view is that due to the court’s approval requirement, pre-court approval settlement agreements are enforceable by the debtor but not against the debtor. The District Court for the Eastern District of New York recently disagreed. It held that the statutory approval requirement is not an opportunity for the debtor to repudiate the settlement.
Directors and officers (D&Os) of troubled companies should be highly sensitive to D&O insurance policies with Prior Act Exclusion. While policies with such exclusion may be cheaper, a recent decision by the U.S. Court of Appeal for the Eleventh Circuit raises the spectre that a court may hold a loss to have more than a coincidental causal connection with the officer’s conduct pre-policy period and make the (cheaper) coverage worthless.
A U.S. House of Representatives Bill would amend the Bankruptcy Code to establish new provisions to address the special issues raised by troubled nonbank financial institutions.
Rian Matthews and Kate Ballantine-Dykes from Baker McKenzie have published an article entitled “Common law to the rescue: bridging gaps in international and domestic restructuring and insolvency regimes” in Corporate Rescue and Insolvency.
The giants of Asia – Indonesia, China, and India – raise many opportunities and challenges for insolvency practitioners. Baker McKenzie’s own Andi Kadir spoke this morning about some of the solutions to those problems, showcasing his significant experience with insolvency reforms and opportunities in Indonesia.
Andi highlighted the benefits of the Penundaan Kewajiban Pembayaran Utang regime as a restructuring tool in Indonesia. A PKPU is a debtor in possession mechanism, somewhat like a blend of a US Chapter 11 administration with aspects of the insolvency laws of the Netherlands.
Billed as INSOL’s “most popular session”, the plenary session Hot Topics – Avoid Being Burnt! provided a brief overview of developments in the insolvency landscape. The session panel was chaired by Jay A. Carfagnini (Goodmans LLP) with panelists the Honourable Justice Paul Heath of the High Court of New Zealand, Gabriel Moss QC, Gaurav Malhorta (Ernst & Young), and Jason Karas (Lipman Karas).
The panel discussed the following points:
There has been great discussion over the course of INSOL on the various restructuring and insolvency reforms being considered or implemented globally. In the break out session ‘The good, the bad and the ugly: national and regional law reforms’, panellists drilled down into the detail of some of these reforms. The panel considered reforms in the EU (Prof. Christoph Paulus, Hamboldt-Universitat zu Berlin), the UK (Mark Craggs, Norton Rose Fulbright LLP), Singapore (Sushil Nair, Drew & Napier LLC), and the US (Donald S.
It has become increasingly common for companies needing to restructure to open restructuring / insolvency proceedings in a jurisdiction outside of where their centre of corporate control is located or assets are concentrated. Forum shopping in a restructuring context is becoming more common place, however it also remains highly controversial. The panelists at the INSOL breakout session, A Hitchhikers Guide of Forum Shopping, considered what makes a good forum for restructuring / insolvency, and whether forum shopping is desirable or undesirable.
In a 2-1 opinion, the Second Circuit overruled the district court in Marblegate Asset Management LLC v. Education Management Corp., finding no violation of the Trust Indenture Act (“TIA”) in connection with an out-of-court debt restructuring.
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