Are the courts of England and Wales establishing themselves as a flexible forum for cross-border enforceability? Here, we consider this question in light of two recent High Court decisions: Re Silverpail Dairy (Ireland) Unlimited Co. [2023] EWHC 895 (Ch) (Silverpail) and Invest Bank PSC v El-Husseini & Ors [2023] EWHC 2302 (Comm) (Invest Bank).
The end of 2022 and the start of 2023 has seen a steady uptick in restructuring activity, not only for companies with complex capital structures but also small-to-medium sized enterprises seeking to take advantage of powerful restructuring tools (such as the UK’s Part 26A Restructuring Plan or Super Scheme).
The case of Goodbox Co Labs Limited (in administration) (Goodbox) is the first example of an individual creditor unilaterally seeking to access the Super Scheme.
As we enter the final quarter of what has been a tumultuous year, the UK restructuring market has been open as usual for companies and creditors seeking to use the flexible restructuring implementation process of a Part 26 “scheme of arrangement” or the latest and greatest restructuring process now found in Part 26A of the Companies Act, a “restructuring plan” (or “Super Scheme” as we like to dub it).
Amendments to Article 9.1 of the Insolvency Law1 ("Law 149-FZ") came into effect on 24 April 2020. The amendments provide that the benefit of the insolvency filing moratorium can be waived (the "moratorium waiver"). In addition, on 21 April 2020, the Supreme Court of the Russian Federation ("Russian SC") adopted clarifications (the "Clarifications"),2 which, in particular, explain that the moratorium will apply if the debtor meets the formal criterion of being included in the list of persons covered by the moratorium ("protected debtors").
The Russian Government has introduced a moratorium on the filing of insolvency claims (the "moratorium")1 from 6 April through 6 October 2020. This will have important legal consequences both for the persons covered by it ("protected debtors") and for those with whom they do business. The moratorium imposes restrictions on transactions made by protected debtors.
The Dutch Supreme Court has confirmed the decision of the Amsterdam Court of Appeal, which found that the bankruptcy of the Russian based oil company, Yukos, could not be recognised in the Netherlands because it violates Dutch public policy.
The High Court of Hong Kong refused to allow a Chapter 11 Trustee to disclose a Decision from Hong Kong winding up proceedings in the US bankruptcy court. The US proceedings were commenced to prevent a creditor from taking action following a breach of undertakings given to the Hong Kong court in circumstances where the company had no jurisdictional connection with the US.
The Australian Federal Court has clarified the limitations for foreign entities and their office holders in pursuing action in Australia to access the voidable transaction provisions of the Australian Corporations Act.
Control to Serbian Creditors- the amendments to the Serbian Insolvency Act
The recent amendments to the Serbian Insolvency Act enacted 9 December 2018 have placed more control into creditors’ hands allowing them to suggest the insolvency administrator to be appointed, as well as providing less restrictive provisions on the proposers of reorganisation proposals.
Following our previous article, the Court of Appeal dismissed an appeal following the High Court deciding that a moratorium in relation to restructuring proceedings in Azerbaijan could not be extended in breach of the Gibbs rule, allowing two significant creditors to proceed with their claims in the English Courts.