Major changes to bankruptcy rules that govern the administration of consumer bankruptcy cases, and Chapter 13 cases in particular, were recently approved by the Supreme Court and transmitted to Congress.1 After several years of drafting and debate by the rules committee, these rule amendments will become effective December 1, 2017.

上一篇我们谈到诉讼主体的确定问题，本文将从担保的视角对债券持有人的权利救济予以分析。

保证人单方出具《保证函》的效力

Introduction

In the recent case of BPE Solicitors v Hughes-Holland [2017] UKSC 21, the Supreme Court unanimously re-affirmed and clarified the principle established by the House of Lords in South Australian Asset Management Corporation v York Montague [1996] UKHL 10 (the “SAAMCO principle”). This article explains the clarification and the practical consequences it has for those seeking professional advice.

The SAAMCO principle

Summer 2017

Editor: Melanie Willems

IN THIS ISSUE

You Swynson, you lose some

by Robert Blackett 03

10

14

The rule of English law - why Brexit, however blindly foolish it

is, should not matter for arbitration

by Melanie Willems

Unintended consequences - be clear what you advise on

by Ryan Deane

T H E A R B I T E R [ S E A S O N ] 2 0 1 7 2

T H E A R B I T E R S U M M E R 2 0 1 7 3

You Swynson, you lose

some

by Robert Blacke

Lowick Rose LLP (in liquidaon) v Swynson

A case decided last week by the Sixth Circuit illustrates the importance of seeking bankruptcy claim policy amendments when placing D&O coverage. Indian Harbor Ins. Co. v. Zucker (6th Cir. Jun. 20, 2017) involved the application of the insured-vs.-insured exclusion and specifically, whether the policy’s insured-vs.-insured exclusion precluded coverage for a claim brought by a company’s liquidating trust, to which the company’s claims had been assigned by the company as debtor-in-possession after the company filed for bankruptcy.

In the event of a contractual counterparty going into liquidation, whether or not a trade counterparty may claim set-off against debts owed to the insolvent counterparty can dramatically affect the commercial position of the account debtor. This was recently highlighted in the decision of Hamersley Iron Pty Ltd v Forge Group Power Pty Ltd (In Liquidation) (Receivers and Managers appointed) [2017] WASC (2 June 2017).

What does this mean for you?

"The Parent Bank entered into this insurance contract with its eyes wide open and its wallet on its mind."

The Supreme Court of the United States inMidland v. Johnson reversed the Eleventh Circuit Court of Appeals and held that a debt collector that files a proof of claim for debt that is barred by the applicable statute of limitations does not violate the Fair Debt Collection Practices Act (FDCPA) if the face of the proof of claim makes clear that the statute of limitations has run. The Supreme Court refused to accept the debtor's argument that Midland's proof of claim was "false, deceptive, or misleading" under the FDCPA.

On 28 March 2017, the Turnbull Government released draft legislation which would implement wide-ranging reforms to Australia’s corporate restructuring laws. The draft legislation focuses on reforms to the insolvent trading prohibition (Safe Harbour) and introducing a new stay on enforcing “ipso facto” clauses during certain restructuring procedures (Ipso Facto).

In two recent decisions, both the United States Courts of Appeals for the Fourth Circuit (Fourth Circuit) and the Fifth Circuit (Fifth Circuit) concluded that certain orders entered in bankruptcy cases could not be grounds for invocation of res judicata with regard to proofs of claim that are deemed allowed. Both addressed the plain language of Section 502(a) of the United States Bankruptcy Code (the Code) in conjunction with relevant Bankruptcy Rules and Official Forms, and congressional intent.