In a second application heard on the same day, Hildyard J considered an application by the administrators of Lehman Brothers Europe Limited (LBEL) for directions that would enable a surplus to be distributed to the sole member of LBEL while LBEL remained in administration. The proposed scheme had material benefits for both shareholders and creditors. The administrators acknowledged that the orders sought were an indirect means of circumventing the Insolvency Act 1986 (UK), which does not expressly provide for directors to make distributions during an administration.

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").

The Court of Appeal has recently dismissed an appeal from the High Court's judgment (discussed in our September 2016 update) setting aside a compromise under Part 14 of the Companies Act 1993 after finding that the challenging creditors, who had voted against the compromise, had been unfairly prejudiced by the decision to call only one meeting of creditors.

In McIntosh v Fisk [2017] NZSC 78, the New Zealand Supreme Court had to consider whether the liquidators of a Ponzi scheme were entitled to recover from an investor a payment that the investor had received shortly before the appointment of the liquidators.

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.

The case of Singularis Holdings Ltd v Daiwa Capital Markets Europe Ltd [2017] EWHC 257 (Ch) concerned the liability of a stockbroking company for failing to investigate fraudulent transactions. 

In Akers & Ors v Samba Financial Group (Rev 1) [2017] UKSC 6, the UK Supreme Court confirmed that British insolvency officers can only void dispositions of a company's assets held on trust in certain circumstances.