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The Pre-Action Protocol for Debt Claims comes into force on 1 October 2017. This note deals with the key elements to be aware of.

Applicability

While the Protocol is named the Pre-Action Protocol for Debt Claims the first thing to note is that it only applies to businesses claiming payment of debts from an individual (including individual sole traders) and does not apply to business-to-business debts.

Traditional thinking in the private placement noteholder community has been the “model form” approach to make-whole amounts created an enforceable liquidated damages claim in the event of voluntary or involuntary acceleration by the note issuer, including upon a bankruptcy filing. That thinking has been tested in the market as a result of a number of recent decisions involving public notes where courts have interpreted the specific indenture language to deny a make-whole claim.

Last year, we reported that Australia had proposed significant insolvency reforms that, in our view, are long overdue ("A Major Leap Forward for Australian Insolvency Laws").

New Federal Law No. 266-FZ dated 29 July 2017 (the Amendment Law) introduces notable changes to Russia’s insolvency rules. Importantly, the law does away with the original provisions on vicarious liability of controlling persons in RF Law No. 127-FZ on Insolvency of 26 October 2002 (the Insolvency Law). The Amendment Law expands this concept in a series of new clauses. The rules came into force 30 July 2017.

This update deals with “onerous property” and the issues involved when a trustee in bankruptcy disclaims onerous land, including the potential impact on lenders.

Disclaimer of onerous land by a trustee in bankruptcy

At any time, the trustee of a bankrupt estate may disclaim land which is burdened with onerous covenants or is unsaleable or not readily saleable (s 133 of the Bankruptcy Act 1966 (Cth)).

On July 31, 2017, the Bankruptcy Court for the Southern District of New York recognized a Russian insolvency proceeding as a foreign main proceeding under chapter 15 of the U.S. Bankruptcy Code (“Code”), concluding that (i) a retainer deposited with the debtor’s attorneys in the U.S. was sufficient property within the United States to establish jurisdiction over a debtor under section 109(a) of the Code and (ii) the Russian insolvency proceeding was not “manifestly contrary to public policy of the United States.”

Oil prices hit a low point in 2016, falling below $27 a barrel, a price not seen since 2003. The drop sent ripples across the industry, creating challenges for every player in the supply chain, from oil producers to pipeline companies. A year later, prices have recovered, and the sector is seeing indicators that the toughest of times are behind it. This is particularly true for the offshore oilfield services industry, a subsector that relies on increased oil exploration and production to rebound from the temporary lag in demand for construction services, rigs and support vessels.

Close to ten years have passed since the filing of the chapter 11 cases of Tulsa, Oklahoma-based SemCrude L.P., but this week, the Third Circuit Court of Appeals affirmed a 2015 district court ruling that resolved a dispute between oil producers and downstream purchasers over the perfection and priority of interests in oil sold by SemCrude L.P. and its affiliates. The Third Circuit’s holding in In re SemCrude L.P., --- F.3d ---, 2017 WL 3045889 (3d Cir.

LBI EHF (in winding up) v. Raiffeisen Zentralbank Österreich AG and Raiffeisen Bank International AG [2017] EWHC 522 (Comm)

Ministerial Decisions

Issuing the Executive Regulations of Sultani Decree No. 31/96 on determining the rules for investing the funds of the Public Authority for Social Insurance and pension funds.

A list of the state pension funds to which these regulations apply is given in Article 2 of this decision.

Issued on 13 June 2017. Effective from the day after the publication date.

Issuing the licensing and working system at the site of the customs territory in the Special Economic Zone at Duqm.