Introduction

Carey Olsen’s restructuring and insolvency team has succeeded in applying to the Royal Court for the restoration of K2 Insurance Limited (“K2”), a liquidated and dissolved company, enabling the company to subsequently recover a substantial asset. Advocate David Jones and Associate Harry Stirk acted for Ian Damarell of BDO Limited, the liquidator of K2.

The Facts

This article focuses on the judgments delivered in June and October 2014 by the Guernsey Court  of Appeal in the long-running Tchenguiz litigation [Investec Trust (Guernsey) Limited and Another v Glenalla Properties Limited and Others]. The litigation concerned the liabilities of a trustee to creditors in circumstances where the creditor claims far outweighed the value of the trust fund.

A consultation process to update the insolvency laws and practices in Guernsey has been launched by a government department in the island with businesses, industry bodies, lawyers and insolvency practitioners being invited to respond to the process before 31 December 2014. 

David Jones a restructuring and insolvency expert from Carey Olsen was invited to participate as part of the Commerce and Employment Department’s working party that reviewed the laws which raise a number of key areas for change.

Recently, U.S. Customs and Border Protection (CBP) took a new, creative tack in a long struggle with importers regarding application of the “deemed liquidation” statute, 19 U.S.C. § 1504, to entries subject to antidumping and countervailing duties (AD/CVD). Importers need to be aware that CBP is now taking the dubious position that it is entitled to “reliquidate” a “deemed liquidated” entry at any time, so long as it gives notice to the importer of the “deemed liquidation” and then reliquidates the entry within 90 days after the date of the notice.

WHAT IS FATCA?

A recent case heard before the Royal Court in Guernsey has provided clear guidance on the application of the principle of modified universalism to insolvency matters in Guernsey.

The Royal Court has recently given clear guidance on the application of the principle of modified universalism to insolvency matters in Guernsey. The case of EFG Private Bank (Channel Islands) Ltd  v. BC Capital Group (in liquidation) & Ors [34/2013] will have significant consequences for cross- border insolvencies with a Guernsey element, as it sets out for the first time the principles which the Royal Court should consider when assessing the nature and extent of its obligation to provide “active assistance” to foreign insolvency proceedings.

Section 546(e) of the Bankruptcy Code offers a strong defense for holders of bonds, notes and other securities to preference and fraudulent transfer actions brought in bankruptcy proceedings. Essentially, any payment made to settle or complete a securities transaction, including repurchases and redemptions of bonds, notes and debentures, is protected from avoidance under the Bankruptcy Code. For many years, however, this powerful defense was rarely used. When the defense was raised, it was usually in the context of protecting payments made in leveraged buy-outs.

Can a secured creditor decide not to participate in a bankruptcy proceeding and thereby avoid any impact the bankruptcy may have on its lien? According to a recent decision by the United States Court of Appeals for the Fifth Circuit in S. White Transp., Inc. v. Acceptance Loan Co., 2013 WL 3983343 (5th Cir. Aug. 5, 2013), the answer appears to be that at least in the Fifth Circuit, the secured creditor can avoid the impact a bankruptcy plan has on its lien by simply declining to participate in the bankruptcy proceeding.

Over the last two decades, many companies faced with excessive asbestos-related liabilities have successfully emerged from bankruptcy with the help of section 524(g) of the Bankruptcy Code, which channels all asbestos-related liabilities of the reorganized company to a newly formed personal injury trust. The injunctive relief codified in section 524(g) is modeled on the channeling injunction first crafted in the bankruptcy case of Johns-Manville Corporation, once the world’s largest producer of asbestos-containing products.