There are a number of options and avenues that a company can explore when faced with business stress or distress. Depending on the circumstances, a combination of these could be appropriate to help mitigate or avoid a business failing.
This guide provides an overview of potential options and should be considered alongside specific advice from the company's advisors.
Informal Options
Even when informal options are being considered, directors should engage with their advisors and stakeholders to ensure that their decisions take into account their directors' duties.
Background
Several recent insolvencies of popular crypto fin-techs have shaken the crypto markets, eroding investors’ trust in digital assets in general and their future reliability.
The European Union's (EU) response is to implement new and clarify existing safeguards for investors to protect their property in the event of an insolvency. In this context, the Markets in Crypto Assets Regulation (MiCAR) is to be implemented throughout the EU.
Legislative changes
The High Court has clarified the grounds for challenging a CVA for guarantee creditors.
Background
Yesterday saw the end of a three-day sanction hearing for the restructuring plan (the “Plan”) of the Great Annual Savings (GAS) company, with Justice Adam Johnson reserving his judgment and importantly, his decision on whether to exercise cross-class-cram-down to sanction the Plan for a later date.
On April 19, 2023 the Supreme Court issued its unanimous ruling in MOAC Mall Holdings LLC v. Transform Holdco LLC, 528 U.S ____ (2023), holding that the limitations contained in section 363(m) of the United States Bankruptcy Code are not jurisdictional. The Supreme Court’s ruling not only resolved a split amongst the circuits, but it also cleared up a foggy corner of arguably one of the most consequential sections of the Bankruptcy Code.
‘If, at first, you don’t succeed, then try and try again’ is a fitting description for HMRC’s recent approach to restructuring plans, with its opposition of plans proposed by The Great Annual Savings Company (GAS) and Nasmyth Group Limited (Naysmyth).
The GAS sanction hearing (which is due to take place this week) will be the first time that HMRC has taken an active role contesting a restructuring plan at sanction following the case of Houst where the Court exercised its discretionary power to “cram down” HMRC.
Background
Decision
Key takeaways
The High Court has clarified the grounds for challenging a CVA for guarantee creditors.
Restructuring proceedings in Hungary provide a more flexible solution than bankruptcy and liquidation proceedings and potentially an effective alternative for companies in financial difficulties.
Key benefits
Commencement pre-insolvency
The High Court has clarified the grounds for challenging a CVA for guarantee creditors.
Background
Mizen Design/Build Ltd's (Mizen) directors proposed a CVA stating that this would lead to a better result for unsecured creditors than the likely alternative, administration.
The CVA compromised guarantee creditors' ability both to bring a claim against Mizen and to call upon their performance guarantees against Mizen's parent company (the Parent Guarantor).
The German Federal Court (BGH) has confirmed that section 166 of the German Insolvency Code (InsO) does not provide the administrator with a right to use or realise secured assets for the benefit of the insolvency estate other than movable assets or claims assigned by way of security.
Background
Under section 166 InsO an insolvency administrator may realise a movable asset in which a right to separate satisfaction exists if it is in the administrator's possession. The same applies to claims assigned by way of security.