The Supreme Court repeated its criterion on classifying as insolvency claims any leasing installments arising after the declaration of insolvency, and interpreted the amendment introduced into article 61.2 of the Insolvency Act (“IA”) by the 2011 reform.
Decision of the Supreme Court of Justice, No 117-B/1999.P1.S1., of 2015-01-08 Transforming companies – Partner – Resignation – Liquidation of the company – Judicial ruling – Feasibility – Decision
In this decision, the Supreme Court of Justice (“STJ”) was asked to give ruling on the feasibility of the decision that was presented as an enforceable title, which was delivered within a special procedure of liquidation of an equity interest presented by a creditor partner against a debtor company.
The Madrid Senior Commercial Judges have published the conclusions of the meetings held on November 7 and 21 on the unification of applicable criteria of the reforms of the Insolvency Act enacted by Royal Decree-Law 11/201415 and Act 17/2014.16
Claims secured with an in rem guarantee continue to accrue default interest charged to the encumbered asset and are classified as privileged.
The Madrid Provincial Court applied the doctrine of the Supreme Court judgment of April 30, 2014, no. 100/20148, and declared the rescission of a personal guarantee granted by the insolvent company to secure the loan granted by a credit institution to a related company.
The insolvency system established under Royal Decree-Law 5/2005 applies to interest rate swap agreements if they are subject to a contractual compensation agreement, even when there is only a financial transaction under that agreement. Any claims arising from these agreements that might have accrued after the declaration of insolvency will be charged against the insolvency estate.
The Council of State has issued a report regarding the request for a declaration of the administration’s financial liability made by a party expropriated for fair value in legal proceedings in view of the declaration of insolvency of the concessionaire benefitting from the expropriation.
When a company is being wound up in a given jurisdiction, can an anti-suit injunction be sought against relevant creditors or members to prevent them from pursuing proceedings in another jurisdiction with a view to securing priority in the liquidation?
This was the issue for the Privy Council to decide in Stichting Shell Pensioenfonds v Krys and another (British Virgin Islands) (26 November 2014), in what is an interesting instance of the application of anti-suit injunctions within the insolvency framework.
Facts
As the bankruptcy of OW Bunker has shown, insolvency in a shipping context can cause significant, far reaching and immediate legal uncertainty. The interaction of insolvency procedures, jurisdictional issues, and the complex web of contractual relationships involved in shipping insolvencies creates unique practical and legal challenges. In this Briefing, we consider from a Hong Kong perspective some of the practical issues that commonly arise.
Insolvency in the Hong Kong Courts
Judgment of the Supreme Court of Justice No 15/2014, published in Diário da República (Portuguese official gazette) No 24 of 2014-12-22
Insolvency – Insolvency Administrator – Presumption of bad faith