Fernando Daniel Hernandez, Marval O’Farrell & Mairal
This is an extract from the 2020 edition of the Americas Restructuring Review, published by Global Restructuring Review. The whole publication is available here.
In summary
The appeal decision of the Full Federal Court in AIG Australia Limited v Kaboko Mining Limited confirmed that an insolvency exclusion was not triggered where a cause of action by a company against its former directors did not contain allegations of insolvency, notwithstanding that the directors’ actions arguably led to the company’s insolvency.
Background
The judicial managers of offshore oil and gas group Swiber have announced a restructuring plan for the company – which includes handing over shares to its professional services providers in part-payment of fees.
Judicial managers Bob Yap Cheng Ghee, Ong Pang Thye and Tay Puay Cheng of KPMG published the plan on 7 May, urging creditors to vote in favour to avoid Swiber’s liquidation.
Hong Kong’s restructuring scene is one of the most cross-border in the world, with three-quarters of its listed companies incorporated offshore and most restructurings having a mainland China connection. But the territory still lacks a statutory regime for cross-border recognition – as recently brought into focus in the restructuring of Singaporean engineering company CW Group. What does this mean for international insolvencies in the region?
EY's Hunter Kelly and Alan Hudson have been appointed administrators over UK construction services company Interserve, hours after it failed to secure shareholder approval for a restructuring plan.
Kelly and Hudson were appointed over Interserve Plc, the holding company for the Interserve Group, on 15 March after the plan failed to win approval at a shareholders' general meeting earlier the same day.
In December 2018, NSW building certifier Watson Oldco entered into voluntary administration. The AFR reports that administrators have attributed the move largely to the result of uninsured exposure to potential claims arising from buildings with combustible cladding. Although there were no known claims against Watson Oldco, it was reported that there was uninsured exposure which led to the decision to place the company into voluntary administration.
The decision in Kaboko Mining Limited v Van Heerden (No 3)1 highlights the importance of considering carefully both the pleaded causes of action, as well as the underlying facts of a claim, to determine whether it ‘arises out of, is based upon or attributable to’ a particular event or circumstance that could trigger an exclusion.
Background
Singapore’s new restrictions on ipso facto clauses are welcome news to the local restructuring community, and a strong step towards establishing it as one of the region’s premier restructuring hubs. But how will these restrictions affect innocent counterparties and existing commercial contracts, ask partner Guan Feng Chen and associate Jonathan Tang at Morgan Lewis Stamford?
New restrictions on ipso facto clauses
On 13 September 2018, the UK Government published a guidance notice (Guidance) on handling civil disputes, including cross-border insolvencies, in the event that the UK exits the EU without having first agreed a framework for ongoing civil judicial cooperation, and from which time and date (11 pm on 29 March 2019) the UK will not benefit from the EU rules to replace the current arrangements.
In early 2017 we reported that following various scandals affecting business in the UK, the Government had made it clear that it intended to crack down on unacceptable boardroom behaviour.
A report published by the Business, Energy and Industrial Strategy Committee suggested that the existing law governing corporate governance did not require revision. However, the Committee recommended a number of measures including a voluntary code of corporate governance for large private companies.