SU M M ER 2 02 1 | I F LR .C O M | 1 T he Hong Kong Companies Court has made a number of rulings concerning mainland Chinese corporate groups listed in Hong Kong SAR which illustrate the evolving landscape of cross-border insolvency law.These cases may, in some instances, cause creditors and debtors to re-evaluate some of the enforcement and defensive strategies traditionally used in the insolvencies of such companies.
1 Contact Information If you have any questions concerning this update, please contact: Naomi Moore Partner [email protected] Hong Kong +852 3694.3050 Abid Qureshi Partner [email protected] New York +1 212.872.8027 Liz Osborne Partner
In the groundbreaking recent decision in Re Samson Paper Company Limited (in Creditors’ Voluntary Liquidation) [2021] HKCFI 2151 (“Samson”), the Hong Kong Companies Court (the “Hong Kong court”) has for the first time issued a letter of request to a court in mainland China under the new cross-border mutual recognition, assistance and cooperation arrangement between Hong Kong and mainland China (the “Mainland”) in relation to corporate insolvency and restructuring matters (the “Cooperation Arrangement”), which took effect on May 14, 2021.
This past Monday, July 26, marked passage of the most recent major milestone in the replacement of LIBOR as the benchmark USD interest rate. Following the recommendation of the CFTC’s Market Risk Advisory Committee (MRAC) Interest Rate Benchmark Reform Subcommittee, on July 26, 2021 interdealer brokers replaced trading in LIBOR linear swaps with SOFR linear swaps. This switch is a precursor to the recommendation of SOFR term rates. The switch does not apply to trades between dealers and their non-dealer customers.
Beginning on February 13, 2021, something unprecedented happened in the state of Texas—a winter storm caused temperatures to dip well-below freezing. This event, dubbed the “Black Swan Winter Event,” caused Texas to experience a catastrophic energy crisis. As demand for energy soared, supply plummeted as power plants tripped offline and natural gas supply lines froze. The storm raged on, and on February 16, the Public Utility Commission of Texas (“PUCT”), which oversees the Electric Reliability Council of Texas, Inc.
Sounds like an odd combination—enforceability of make-whole and post-petition interest and patent law. It is. But relevant nonetheless. Recall that a key argument in the ongoing Ultra Petroleum dispute regarding the noteholders’ entitlement to make-whole and post-petition interest is the existence of the Solvent Debtor Rule. The Solvent Debtor Rule is a judicially created exception to the prohibition on claims for post-petition interest by unsecured creditors in bankruptcy.
Distressed transactions in bankruptcy court have become big business. Sales under Section 363 of the bankruptcy code provide predictability and reliability (in the form of a court order delivering “free and clear” assets) under even the most turbulent of circumstances. Commonly known simply as “363 sales,” these transactions can provide an opportunistic purchaser with significant upside under the right circumstances. But the truly opportunistic buyer will need to buckle up and be prepared to move with lightning speed in a highly competitive and transparent forum.
Though bankruptcy filings are down in 2021, the expiration of the Paycheck Protection Program and reopening of the courts nationwide could lead to a rise in bankruptcy filings with many businesses still struggling to cope with the economic and supply chain aftereffects of the pandemic and consumer purchasing habits. These bankruptcies, in turn, will have an inevitable ripple effect on creditors and other claimants, whose abilities to collect on claims and exercise rights, are significantly restricted by the automatic stay.
On June 10, the Federal Trade Commission (FTC) filed an amended complaint for civil money penalties and other relief under Section 5 of the FTC Act prohibiting “unfair or deceptive acts or practices” and Section 521 of the Gramm-Leach-Bliley Act (GLBA) prohibiting the use of fraudulent statements to obtain consumer information.
On June 17, 2021, President Biden signed Senate Bill 475 into law, making “Juneteenth” a federal holiday. Because June 19th (tomorrow) falls on a Saturday this year, the day will be observed by federal government offices on June 18, 2021 (today).
This new law, revising the list of federal holidays in the U.S. Code, will affect consumer credit lenders’ operations. It is important for lenders to review their processes to determine how this new holiday will impact their operations.