Under the 1992 ISDA Master Agreement, following an event of default, there is either an automatic termination or the non-defaulting party can serve a notice designating an Early Termination Date. There then has to be a determination by the non-defaulting party of the compensation that is owed by one party or the other. This is done by closing out the transactions, which involves determining gains or losses in replacing or providing the economic equivalent of the terminated transactions. Once that is done, a statement is served setting out the calculations.

Welcome to this month's edition of our commercial and tech update, covering a wide range of topics from Facebook's lacklustre approach in dealing with IP infringement to further confirmation on the Courts' approach to liquidated damages.

(Mis)Adventures in advertising

Welcome to the inaugural edition of 'Going concerns', in which we strive to bring you the latest updates on restructuring and insolvency law. For this issue, we focus on Singapore and provide:

The government action bar provides that a relator may not bring a False Claims Act (FCA) lawsuit “based upon allegations or transactions which are the subject of a civil suit or anadministrative civil money penalty proceeding in which the Government is already a party.” 31 U.S.C. § 3730(e)(3) (emphasis added). Recently, in Schagrin v. LDR Industries, LLC, No. 14 C 9125, 2018 WL 2332252 (N.D. Ill.

On May 25, 2018, the U.S. Court of Appeals for the Second Circuit affirmed a district court decision finding that producer Sabine Oil and Gas Corp. could reject certain midstream gathering contracts in its bankruptcy case.i

The Bankruptcy Court for the Southern District of New York (the Bankruptcy Court) issued an opinion on April 9, 2018 recognizing and enforcing a scheme of arrangement that contained non-consensual releases of non-debtor subsidiary guarantors under chapter 15 of the Bankruptcy Code. The Bankruptcy Court held that, in certain situations, such non-debtor releases may be approved and enforced in chapter 15 proceedings based upon principles of comity, even where similar arrangements would be impermissible in a chapter 11 proceeding. 

On September 1, 2017, the Board of Governors of the Federal Reserve System (the Federal Reserve) adopted a rule (the Rule)1 that will require global systemically important U.S. bank holding companies (U.S. GSIBs)2 and most of their subsidiaries to amend a range of derivatives, short-term funding transactions, securities lending transactions and other qualifying financial contracts (QFCs). The required amendments will limit counterparty termination rights related to certain U.S. GSIB resolution and bankruptcy proceedings.

On September 21, 2017, the United States Bankruptcy Court for the Southern District of Texas (the Court) held, over the objection of Ultra Petroleum Corp.

On June 26, 2017, the recast EU regulation on insolvency proceedings1 (the Recast Insolvency Regulation) came into force.

Existing Legislation

The new Insolvency (England and Wales) Rules 2016 (SI 2016/1024) came into force on April 6, 2017 (the 2016 Rules). The 2016 Rules replace the Insolvency Rules 1986 (SI 1986/1925) and their 28 subsequent amendments (the 1986 Rules) and represent a continuation of the Insolvency Service’s recent efforts to modernize and implement policy changes under various pieces of primary legislation.