On July 19, 2017, the Third Circuit Court of Appeals issued an opinion in Arrow Oil & Gas, Inc., et al. v. J. Aron & Company, et al.(In re Semcrude, L.P., et al.), Case Nos. 15-3094, 15-3095, 15-3096 and 15-3097, affirming the Delaware bankruptcy court and district court, holding that upstream oil producers do not have an automatically perfected statutory security interest in oil sold even if Texas or Kansas law applied.

A common issue that arises in many bankruptcy cases is whether a creditor who refuses to return collateral that he repossessed prior to the petition date violates the automatic stay. In February, the Tenth Circuit widened a circuit split by adopting the minority position that to violate the automatic stay in bankruptcy a creditor must take action, not merely retain the property of the estate. The Bankruptcy Code's automatic stay provision, 11 U.S.C. 362, prohibits any post-petition "act to obtain possession of property of the estate or ...

Major changes to bankruptcy rules that govern the administration of consumer bankruptcy cases, and Chapter 13 cases in particular, were recently approved by the Supreme Court and transmitted to Congress.1 After several years of drafting and debate by the rules committee, these rule amendments will become effective December 1, 2017.

The Hong Kong Court of First Instance (CFI) has issued a judgment1 examining the instances in which the Hong Kong courts will exercise their jurisdiction to wind-up a foreign company.

In a welcome decision the CFI has made it clear that, given certain conditions, creditors will be able to enlist the winding-up jurisdiction of the Hong Kong courts in order to exert pressure on foreign companies which refuse to pay their debts.

The English Supreme Court has considered various new categories of creditor claims against a company with unlimited liability in administration where, unusually, there was enough money to pay all creditors and a surplus existed.

In proceedings commonly referred to as the Waterfall I litigation, the Supreme Court considered issues relating to the distribution of funds from the estate of Lehman Brothers International Europe (in administration) (LBIE), in circumstances where there was a surplus of assets amounting to approximately £8 billion.

Most commodities contracts are cross border, often with one or more parties located in a country where gaining access or cooperation to enforce an arbitration award or court judgment can be challenging.

If your counterparty is in a ‘difficult’ country, is there any point in incurring the time and cost of pursuing a claim in arbitration or litigation against them at all? Alternatively, do you already have awards or judgments against parties that you have not found a way to enforce? Are they worth any more than the paper they are written on?

Introduction

In the recent case of BPE Solicitors v Hughes-Holland [2017] UKSC 21, the Supreme Court unanimously re-affirmed and clarified the principle established by the House of Lords in South Australian Asset Management Corporation v York Montague [1996] UKHL 10 (the “SAAMCO principle”). This article explains the clarification and the practical consequences it has for those seeking professional advice.

The SAAMCO principle

In a recent landmark judgment, the Singapore High Court has ruled that it has the power to alter priorities between maritime claimants in “exceptional circumstances”.

In THE POSIDON (2017) SGHC 138, Piraeus Bank (Bank) commenced two mortgagee actions in Singapore, arising from the ship owner’s default under a loan agreement, and arrested two vessels, THE POSIDON and THE PEGASUS. These vessels were subsequently sold by judicial sale.

Summer 2017

Editor: Melanie Willems

IN THIS ISSUE

You Swynson, you lose some

by Robert Blackett 03

10

14

The rule of English law - why Brexit, however blindly foolish it

is, should not matter for arbitration

by Melanie Willems

Unintended consequences - be clear what you advise on

by Ryan Deane

T H E A R B I T E R [ S E A S O N ] 2 0 1 7 2

T H E A R B I T E R S U M M E R 2 0 1 7 3

You Swynson, you lose

some

by Robert Blacke

Lowick Rose LLP (in liquidaon) v Swynson

A case decided last week by the Sixth Circuit illustrates the importance of seeking bankruptcy claim policy amendments when placing D&O coverage. Indian Harbor Ins. Co. v. Zucker (6th Cir. Jun. 20, 2017) involved the application of the insured-vs.-insured exclusion and specifically, whether the policy’s insured-vs.-insured exclusion precluded coverage for a claim brought by a company’s liquidating trust, to which the company’s claims had been assigned by the company as debtor-in-possession after the company filed for bankruptcy.