Significant emerging factors and trends are increasing pressure on directors. After several years of relative stasis induced by the pandemic (when many businesses were supported by various government initiatives and bank flexibility, whilst also enjoying ATO and creditor patience), there is a distinct whiff of change in the air. This year, we might see a move back to a more ‘normal’, pre-COVID setting. If so, there will be pressures for some, and opportunity for others.
FSMA 2023 includes a court procedure for failing insurers to temporarily write-down liabilities, with implications for counterparties.
The ruling, which held that the transaction did not violate the implied covenant of good faith and fair dealing, highlights the importance of carefully drafting lending documents.
On June 6, 2023, Judge David Jones of the United States Bankruptcy Court for the Southern District of Texas (the Bankruptcy Court) held that the 2020 Serta Simmons "uptier" transaction (the Transaction) was permitted under Serta's existing 2016 credit agreement (the Credit Agreement), a decision that could have broad implications for the permissibility of such transactions.1
In an environment of interest rate pressure, a cooling economy and global economic uncertainty, corporate insolvencies are a stark reality. The failure of construction companies has become regular news and ASIC recently released insolvency data that shows a marked uptick in Australian insolvencies in general.
A bankruptcy petition should not proceed if the debt is disputed and subject to an exclusive jurisdiction clause in favour of a foreign court.
The introduction of the ‘ipso facto regime’ in 2018 had a widespread impact on the drafting and application of termination provisions in commercial contracts, casting doubt on the longstanding practice of allowing a right to terminate a contract when another party to the contract becomes insolvent.
The scheme offers a credible implementation alternative, but no “one size fits all” solution exists for German credits.
German credits in sectors such as real estate, automotive, and energy face a worsening macro backdrop. At the same time, the available toolkit for financial restructurings has expanded, offering multiple options without the need for recourse to insolvency proceedings.
Judicial comments cast doubt on the ability to compromise US law-governed debt effectively based on Chapter 15 recognition alone.
In a new ruling, the UK Supreme Court concluded that the rule applies only when a company is "insolvent or bordering on insolvency".
On 5 October 2022, the UK Supreme Court handed down judgment in BTI 2014 LLC v. Sequana SA and others (Sequana)1. The case required the court to reconcile differing judicial pronouncements of the "creditors' interest rule" (the Rule) and consider the following questions:
The court's decision in In re Imerys Talc America, Inc. clarifies the appointment standard for future claimants representatives in the Third Circuit under Section 524(g) of the US Bankruptcy Code.
In a precedential decision, the US Court of Appeals for the Third Circuit upheld the appointment of James L. Patton, Jr. as the legal representative for future talc claimants (FCR) by the bankruptcy court in the Imerys Talc America chapter 11 cases.1