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).
It is common for E&P companies in chapter 11 to seek to reject burdensome midstream contracts under Bankruptcy Code § 365. Rejection has not been permitted by bankruptcy courts where such agreements create enforceable covenants running with the land (“CRWL”) because a CRWL is a real property interest of the midstream gatherer, not just a contract right. Accordingly, before a debtor can seek to reject midstream agreements, the bankruptcy court must first determine whether an enforceable CRWL exists.
On August 26, 2020, the U.S. Court of Appeals for the Third Circuit affirmed Delaware Bankruptcy Judge Kevin Carey’s order confirming the Tribune Company’s chapter 11 plan.1 As a matter of first impression, the Court held that the prohibition against “unfair discrimination” in cramdown plans supplants the requirement that subordination agreements be enforced in bankruptcy. The decision comes more than eight years after Judge Carey initially entered the Bankruptcy Court order, and follows years of appeals by the senior noteholders.
The COVID-19 pandemic has heavily disrupted our lives, communities, and businesses. Even with new approaches, not all businesses can overcome the substantial challenges brought by the pandemic. Lending programs like the Paycheck Protection Program have brought temporary relief, but many small businesses remain exposed to financial difficulties and face a real risk of bankruptcy.
New Small Business Provisions in Bankruptcy Code
A recent bench ruling in In re Pace Industries, LLC1 by Judge Walrath for the Bankruptcy Court for the District of Delaware (the “Court”) has validated a chapter 11 bankruptcy filing by certain debtors in the jointly administered cases of Pace Industries, LLC and certain of its affiliates, in spite of the fact that they were filed in contravention of an explicit bankruptcy-filing blocking right held by certain equity holders as set forth in the applicable corporate governance documents.
The question regarding whether a trademark licensee may continue to use a license after a debtor-licensor rejects the license in its bankruptcy case has now been answered. On Monday, May 20, 2019, the Supreme Court handed down an 8-1 opinion in Mission Product Holdings, Inc. v.
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.