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自改革开放以来,我国经济经历了四十余年的高速增长,目前已由高速增长阶段转向高质量发展阶段。在高速增长阶段积累的债务风险近年来不断显现,金融机构的不良资产不断增加。现阶段为深化供给侧结构性改革,推动经济高质量发展,对我国经济社会发展过程中存在债务风险的重点领域实施系统性、高质量的债务重组是重要的着力点之一。

自上世纪九十年代以来,金杜开始参与我国一些大型企业集团的债务重组工作;2007年《企业破产法》实施后,金杜更是一直活跃在债务重组市场的一线,既承办和参与了包括海航集团、紫光集团、渤海钢铁、永泰能源、盐湖股份、雨润集团、包商银行、新华信托等在内的一大批大型企业债务重组案件,也承办了大量的“三无”、中小型的企业破产清算案件。金杜债务重组部三十多年来一直专注债务重组领域,积累了丰富的债务重组实践经验。为对我国的债务重组实践提供有益借鉴,同时也为金杜能够更好地服务于债务重组市场,结合过往承办的债务重组具体案例,我们对债务重组市场进行2023年度回顾和观察分析,以期对相关法治建设、营商环境改善以及提高债务重组质量建言献策。

目录

一、2023年我国宏观债务形势整体观察

(一)2023年度宏观经济形势

(二)我国目前存在债务问题的重点领域

Over the past several years, unitranche facilities have become increasingly prevalent. This growth has been driven by the ever-growing class of private credit and direct lenders who initially developed the unitranche facility structure, along with traditional bank lenders now joining this market. The unitranche structure has several advantages, including typically quicker execution for the parties involved and in some cases a lower cost of capital to the borrower.

Bed Bath & Beyond, the home goods retailer, has filed bankruptcy under Chapter 11 and plans to conduct liquidation sales and close all of its brick-and-mortar stores by June 30, as reported by The New York Times. The retailer points to an inability to adjust to the growth of online shopping as a reason for its downfall.

On February 13, 2023, Ultra Petroleum Corporation (“Ultra”) filed a petition for a writ of certiorari with the US Supreme Court seeking review of the Fifth Circuit’s October 2022 ruling that, in solvent-debtor cases, debtors must pay unsecured creditors applicable contractual make-whole premiums and postpetition interest at contractual default rates in order for such unsecured creditors to be considered unimpaired.

What’s an ABC? If you ask ChatGPT, “ABC” is an acronym that can have multiple meanings, depending on the context—for example, referring to the alphabet. But here we are talking about a type of business liquidation process in the United States known as an Assignment for the Benefit of Creditors (“ABC”). An ABC is governed by state law and has long been viewed as an alternative to a liquidation under Chapter 7 of the US Bankruptcy Code.

In a decision likely to have significant impact on certain types of bankruptcy filings going forward, this morning, the Third Circuit Court of Appeals ordered the dismissal of the Chapter 11 bankruptcy case filed by Johnson & Johnson affiliate LTL Management LLC.

On October 19th, the Wall Street Journal reported that the electric vehicle startup Mullen Automotive Inc., gained court approval to buy an Indiana manufacturing plant and assets from Electric Last Mile Solutions for $92 million. Such deal, which boosted Mullen’s share prices by 64%, includes Electric Last Mile Solutions’ manufacturing plant in Mishawaka, Indiana and its inventory and intellectual property.

"Credito Real is attempting to bypass Mexican and US insolvency laws and deploy a corporate liquidation statute with almost no protections for creditors.

In a recent opinion arising from the Chapter 11 proceedings of Arcapita Bank, Judge Alvin Hellerstein of the US District Court for the Southern District of New York affirmed a bankruptcy court decision denying safe-harbor protection to Shari’a-compliant Murabaha investment agreements.1 Specifically, the district court held that the Murabaha agreemen