In the November 2023 edition of the Restructuring Department Bulletin, we highlight recent decisions and developments impacting the restructuring arena and share the latest news on the Paul, Weiss Restructuring Department.
In the October 2023 edition of the Restructuring Department Bulletin, we highlight recent decisions and developments impacting the restructuring arena and share the latest news on the Paul, Weiss Restructuring Department.
What matters
This article delves into some key considerations for suppliers when dealing with customers where there may be a risk of non-payment or insolvency circumstances and how a supplier can minimise the risk to their cash flow and business.
What matters next
What matters
This article delves into some key considerations for suppliers when dealing with customers where there may be a risk of non-payment or insolvency circumstances and how a supplier can minimise the risk to their cash flow and business.
What matters next
When does the directors' duty arise to consider creditors' interests in the face of insolvency if a liability is disputed? Hayley Capani and Kate Garcia consider the case of Hunt v Singh and conclude we still don't have all the answers.
The recent sanction judgment gives important guidance on the way in which the court's discretion should be exercised when sanctioning a restructuring plan and considers whether it is necessary for opposing parties to provide valuation evidence of their own .
Key takeaways from the judgment
No worse off test: expert evidence
In its recent judgement in Re Avanti Communications Ltd [2023] EWHC 940 (Ch) ('Avanti') the High Court decided that in some circumstances a charge can take effect as a fixed charge despite the chargor having some flexibility to dispose of assets without the consent of the charge holder.
Background
In the latest issue of the Restructuring Department Bulletin, we highlight the Supreme Court’s unanimous decision holding that Section 363(m) of the Bankruptcy Code is not jurisdictional. We also discuss two Bankruptcy Court decisions from the Southern District of New York, one which held that the “knowledge exception” to Section 546(e)’s safe harbor defense was sufficiently pled to survive dismissal, and the other which found that service of a discovery subpoena on the foreign debtor’s founders via Twitter was adequate.
On April 19, 2023, the U.S. Supreme Court unanimously held in MOAC Mall Holdings LLC v. Transform Holdco LLC that Section 363(m) of the Bankruptcy Code is not jurisdictional. The decision requires parties timely to invoke that provision, or else risk forfeiting its protections. The decision also continues the Supreme Court’s trend of interpreting statutes to be non-jurisdictional (and thus waivable or forfeitable) in the absence of a clear congressional statement to the contrary.
Background
As of 17 April 2023 new creditors winding up petitions can be presented in accordance with the Insolvency (Amendment) Rules (NI) 2023. This means that the restrictions faced by creditors in filing winding up petitions will be lifted, and ultimately more companies will be open to pursual.