On May 30, 2023, the US Court of Appeals for the Second Circuit released its long-awaited opinion addressing Purdue Pharma’s confirmed chapter 11 bankruptcy plan. Although the appeal challenged more than one aspect of the plan, the Court’s decision was highly anticipated for its discussion of one topic in particular: nonconsensual third-party releases.

In Depth

THIRD-PARTY RELEASES

In Re Guy Lam Kwok Hung [2023] HKCFA 9, the Court of Final Appeal clarified when a debtor can resist a bankruptcy petition based on an exclusive jurisdiction clause (EJC) in his contract with the petitioner creditor. It is important to appreciate the Court’s reasoning and how it can be applied to various factual scenarios.

The characterisation of a charge as fixed or floating can have significant ramifications for the chargee on chargor’s insolvency. This is because the holder of a fixed charge enjoys significant advantage, in terms of the order of priority of distributions to creditors, over a floating charge holder.

The English Court has refused to sanction two separate restructuring plans proposed by Nasmyth Group Limited (Nasmyth) and The Great Annual Savings Company Ltd (GAS). Both companies sought to use Part 26A of the Companies Act 2006 to “cram down” His Majesty’s Revenue and Customs (HMRC). Whilst neither decision is the first time that Part 26A has been used in this way¹, they are the first to involve any active participation by HMRC in the sanction hearing².

Globalisation means that the effects of a business entering insolvency proceedings rarely stay within the territorial confines of a single jurisdiction; one need only look to the recent cryptocurrency bankruptcies as evidence of this. Cross-border insolvencies are no longer the preserve of large multinational corporation failures. Globalisation and the advent of digitisation mean that even small enterprises have customers, assets, and suppliers in multiple countries. This is particularly so across Asia.

Key takeaways

In BTI 2014 LLC v Sequana SA and others,¹ the UK Supreme Court considered for the first time the existence, content and triggers of the obligation on directors to have regard to the interests of creditors when a company becomes insolvent or is bordering on insolvency (the Creditor Duty).

This decision addresses important issues for directors, stakeholders, and advisors of UK companies.

Background

Protecting your business from exposure to supplier and customer insolvency

As we move through Q1 of 2023, significant shifts are occurring in the Global financial and economic landscape which are of significant consequence for business. The marked upward shift in the cost (and reduced availability) of finance, largely unseen for over a decade, combined with high energy and natural resource/raw material costs and challenges and currency fluctuations has the potential to sharply to expose financial distress in businesses in many countries and global supply chains.

UK Restructuring A YEAR IN RETROSPECT 2 Contents Introduction Birmingham London North West Yorkshire UK team UK Restructuring Employment UK Restructuring Section Header Section Header Contents 3 Robert Russell UK Head of Restructuring +44 (0)161 235 4147 [email protected] 2022 – Unpredictable circumstances It would be fair to say that 2022 was not an easy year.

We have emerged from the COVID-19 pandemic amidst war, political instability, strikes and double-digit inflation rates that haven’t been seen since the early 1980s. With interest rates likely to continue to rise during the first half of 2023 and pay increases falling short of inflation, consumer confidence remains low. Companies’ margins are being squeezed by rising interest rates and when combined with increased debt burdens, supply chain difficulties and labour shortages it is no surprise that the number of insolvencies across the UK is increasing.

The end of 2022 and the start of 2023 has seen a steady uptick in restructuring activity, not only for companies with complex capital structures but also small-to-medium sized enterprises seeking to take advantage of powerful restructuring tools (such as the UK’s Part 26A Restructuring Plan or Super Scheme).

The case of Goodbox Co Labs Limited (in administration) (Goodbox) is the first example of an individual creditor unilaterally seeking to access the Super Scheme.