The consummation of a plan of reorganization typically involves a series of complex actions by the debtor and its stakeholders (for example, existing debt and equity are extinguished and new debt and equity issued in their place). If an appeal of a confirmation order is taken, and the appeal reaches the appellate court following consummation of the plan, it raises the difficult question of whether it is possible to grant effective relief to the appellant at that stage. As a constitutional matter, courts — including appellate courts — cannot hear matters that have become moot.

On August 14, 2018, the United States Court of Appeals for the Eleventh Circuit issued a decision holding that section 547(c)(4) of the Bankruptcy Code, which provides a defense to the avoidance of preferential transfers to the extent the transferee provided new value to the debtor,[1] does not require new value to remain unpaid as of the date the bankruptcy petition was filed.

On June 20, 2018, the United States Bankruptcy Court for the District of Delaware issued a decision sustaining the debtors’ objection to the proof of claim filed by Contrarian Funds, LLC.

When it comes to voting on a plan, Section 1126(e) of the Bankruptcy Code provides that a bankruptcy court may designate (or disallow) the votes of any entity whose vote to accept or reject was not made in “good faith” (a term that is not defined in the Bankruptcy Code).

(12) 信托计划中受托人对股权投资应当如何进行管理？

实践中，信托计划受托人取得股权主要基于两种情形，一是基于受托而取得股权，即委托人将自己合法持有的股权作为信托财产，转移至受托人管理和处分；二是基于投资而取得股权，即委托人先把自己合法持有的信托资金或其他财产转移至受托人，进而由受托人通过管理、运用该等受托财产，以增资、受让等方式投资取得股权并对该等股权进行管理和处分。

基于受托人取得股权的不同情形，受托人对股权投资的管理责任不完全相同。

如受托人系基于受托取得股权，受托人的股东身份更接近“名义股东”，其对投资股权的管理主要受限于信托合同约定的信托财产的运用及管理方式。

回购条款作为资管产品中常见的增信措施，资管新规对其有何影响？

资管新规之前，回购条款的效力得到法院普遍认可

回购条款本质上是一种逆向的、独立的交易行为，属于合同债权的范畴。其虽然具有一定的债权保障作用，但不构成债权担保的从属性，更不具有担保物权的优先受偿功能。因此，回购条款并非我国的法定担保形式。

资管新规之前，司法实践中，法院在考察当事人意思表示和内容的合法性基础上，一般会认可回购条款的合法有效性。

在“重庆国际信托股份有限公司与安徽三联实业发展有限公司等合同纠纷案”（〔2015〕渝高法民初字第00025号）中，法院认为，“《资产收益权转让及回购协议》系当事人的真实意思表示，不违反法律、行政法规的强制性规定，合法有效。结合信托公司提供的营业执照和金融许可证上载明的内容，信托公司签订的上述合同不违反金融监管部门核准的经营范围；且本案合同所涉的借款资金来源并不影响借款合同本身的效力。”

Section 546(e) of the Bankruptcy Code shields certain transfers involving settlement payments and other payments in connection with securities contracts (for example, payment for stock) made to certain financial intermediaries, such as banks, from avoidance as a fraudulent conveyance or preferential transfer. In recent years, several circuit courts interpreted 546(e) as applying to a transfer that flows through a financial intermediary, even if the ultimate recipient of the transfer would not qualify for the protection of 546(e).

On October 20, 2017, the United States Court of Appeals for the Second Circuit issued a decision which, among other things,[1] affirmed the lower courts’ holding that certain noteholders were not entitled to payment of a make-whole premium. The Second Circuit held that the make-whole premium only was due in the case of an optional redemption, and not in the case of an acceleration brought about by a bankruptcy filing.

On October 20, 2017, the United States Court of Appeals for the Second Circuit issued an important decision regarding the manner in which interest must be calculated to satisfy the cramdown requirements in a chapter 11 case.[1] The Second Circuit sided with Momentive’s senior noteholders and found that “take back” paper issued pursuant to a chapter 11 plan should bear a market rate of interest when the market rate can be ascerta

On October 3, 2017, Bankruptcy Judge Laurie Selber Silverstein of the United States Bankruptcy Court for the District of Delaware issued a decision holding that the Bankruptcy Court had constitutional authority to approve third-party releases in a final order confirming a plan of reorganization.