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").
Crusade against dormant companies: make sure you file your annual accounts on time!
Introduction
On 5 September 2017, the Dutch legislator published an amended bill on pre-insolvency proceedings in the Netherlands1 for consultation purposes.2 The Bill contains a proposal for an amendment to the Dutch Bankruptcy Act (Faillissementswet) which enables a company in financial difficulties to propose a composition outside insolvency proceedings to its creditors and shareholders, to restructure problematic debts.
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 recast Insolvency Regulation of 20 May 2015 embodies a further step towards the harmonisation of European Union insolvency law. The main provisions are set to apply to insolvency proceedings as of 26 June 2017.
The key changes relate to a broader scope, the “centre of main interests” (COMI) concept, secondary proceedings, group insolvencies and the introduction of insolvency registers. Overall, the new elements will increase the chance of a positive outcome in complex cross-border insolvencies and offer better cooperation and transparency.
In our recent article, Jevic: Breathing New Life Into Priority Disputes, we discussed the then-pending motions for settlement and dismissal inIn re Constellation Enterprises LLC,et al.,16-bk- 11213 (CSS) (D. Del.). Constellation’s settlement motion proposed to transfer assets to the General Unsecured Creditor Trust over the claims of priority creditors and faced strong opposition in the wake of the Supreme Court’s ruling in Czyzewski et al., v. Jevic Holding Corp., et al., 137 S.