Can another vain attempt to mitigate a $1.5 billion mistake provide the occasion for a thorough review of the doctrine of earmarking? It did for Southern District Bankruptcy Judge Martin Glenn in the long tail on the General Motors bankruptcy case.
Our January 22, May 23, June 28,
Although it may be difficult to define precisely what an “executory contract” is (with the Bankruptcy Code providing no definition), I think most bankruptcy lawyers feel how the late Supreme Court Justice Potter Stewart famously felt about obscenity--we know one when we see it. Determining that a patent license was executory in the first place was an issue in the Fifth Circuit’s recent decision in RPD Holdings, L.L.C. v.
On 11 October 2018, the Supreme Court (Court) vide its judgment in B.K. Educational Services Private Limited v Parag Gupta and Associates (Civil Appeal No. 23988 of 2017) clarified the applicability of Limitation Act, 1963 (Limitation Act) to the Insolvency and Bankruptcy Code, 2016 (Code).
Background
In hindsight, it seems inevitable that constitutional and other jurisdictional problems would arise when Congress, in enacting the Bankruptcy Reform Act of 1978, created impressive new powers and responsibilities for the bankruptcy courts (along with a considerable degree of independence) but denied them the status of Article III courts under the Constitution (by denying its judges lifetime tenure, as Article III requires). And it didn’t take long for the problems to arise.
The Supreme Court in its recent decision in K Kishan v M/s Vijay Nirman Company Private Limited, Civil Appeal No 21825 of 2017, has put to rest the question of whether an arbitral award that has been challenged under Section 34 of the Arbitration and Conciliation Act, 1996 (Act) by the award debtor can form the basis for an action under Section 9 of the Insolvency and Bankruptcy Code, 2016 (Code).
Background The corporate insolvency resolution process (CIRP) against Jaiprakash Infratech Limited (JIL) commenced when the National Company Law Tribunal, Allahabad (NCLT) passed an order dated 09.08.2017 admitting the petition of IDBI Bank Limited under Section 7 of the Insolvency and Bankruptcy Code 2016 (IBC). |
Our July 13 post stated that the deadline for the respondent in Mission Product Holdings, Inc. v. Tempnology, LLC, 879 F.3d 389 (1st Cir. 2018),petition for cert. filed, No. 17-1657 (June 11, 2018), to submit a reply to the petition for certiorari seeking reversal of the First Circuit’s 2-1 decision had been extended to August 8.