Introduction
The Supreme Court’s landmark decision in Harrington v. Purdue Pharma L.P. – holding that the Bankruptcy Code does not authorize the release of third-party claims against non-debtors in a reorganization plan without the consent of the affected claimants – will have a lasting impact on mass tort bankruptcy cases and likely nullifies one of the primary benefits of the so-called “Texas Two-Step” strategy: obtaining third-party releases of the debtor entity’s non-debtor affiliates.
In a groundbreaking ruling, the Court of Appeal for British Columbia recently delivered a decision that is poised to significantly influence insolvency proceedings. The case, cited as British Columbia v. Peakhill Capital Inc., 2024 BCCA 246, marks the first time an appellate court has addressed the jurisdiction and appropriateness of reverse vesting orders (RVOs) in receivership contexts. This ruling provides crucial insights into the court's reasoning and its implications for legal and non-legal professionals alike.
Background and core issue
A public and competitive process
2023 closed with a significant rise in the number of insolvencies in France. With a total of 56,200 insolvency proceedings (redressement judiciaire and liquidation judiciaire), mainly in the retail sector, the opportunities for taking over a business at the bar of a court are multiplying.
However, these takeovers are governed by a strict timetable and formalities, requiring a thorough understanding of the workings of insolvency law.
在 Sian Participation v. Halimeda International [2024] UKPC 16一案中,布里格斯勋爵(Lord Briggs)和夏宝伦勋爵(Lord Hamblen)代表委员会作出判决,认可了关于清盘呈请的传统做法。两位法官确认,即使产生债务的合同包含仲裁条款,亦不能削弱债务人证明债务确实存在实质性争议的责任(下称“可审理问题标准”)。
该案中,委员会的观点与香港高等法院暂委法官王鸣峰资深大律师(William Wong SC)在 Dayang v. Asia Master Logistics [2020] 2 HKLRD 423 一案中的观点(见判词第82、98段)如出一辙,可归纳如下:
In Sian Participation v. Halimeda International [2024] UKPC 16, Lords Briggs and Hamblen, delivering judgment on behalf of the Board, endorsed the traditional approach to winding-up petitions. Their Lordships confirmed that a debtor’s duty to show that the debt is genuinely disputed on substantial grounds (“Triable Issue Standard”) remains undiluted even if the contract from which the debt arose contains an arbitration clause.
The market is experiencing almost unprecedented levels of liquidity, across public and private debt and equity capital markets. This is staunching restructuring activity, which might otherwise be expected to rise (not least as pandemic-related government support starts to withdraw). There are also many companies still sponsoring defined benefit pension schemes. The statutory and regulatory landscape in this area has evolved significantly in recent months – with new powers for regulators, and new restructuring tools for debtors.
While securitisations offer numerous benefits, there are a number of important points for originators to consider to facilitate entering into a securitisation transaction and to avoid prolonged legal work further down the line. In this article, we briefly discuss essential points that originators should be aware of and discuss with prospective lenders or arrangers prior to structuring a securitisation.
Introduction
Keepwell deeds have been commonly used in financing arrangements entered into by business groups in Mainland China and foreign lenders because of the former limitation on repatriating proceeds raised overseas by Mainland companies, which had necessitated the use of foreign subsidiaries and a security structure.
A Hong Kong court has refused to sanction a scheme of arrangement, saying that practitioners should explain the key terms and effect of any proposed restructuring in a way which can be easily understood by the creditors and the court.
In Re Sino Oiland Gas Holdings Ltd [2024] HKCFI 1135, the Honourable Madam Justice Linda Chan refused to sanction a scheme of arrangement, saying that creditors had been given insufficient information about the restructuring and the scheme that would enable them to make an informed decision at the scheme meeting.