Reverse cross border mergers could become a popular device for UK companies seeking to maintain and preserve “passporting” or other EU rights.
The mechanism of a reverse cross-border merger (in this context whereby a UK parent company merges with their continental European subsidiary) has not historically been permitted under English law. However the provisions of an EU directive implemented in the UK in 2007 changed that position giving UK company groups that option.
While significant energy here at the Bankruptcy Cave is devoted to substantive bankruptcy matters, not all aspects of a general insolvency practice are always fun and litigation. Oftentimes insolvency lawyers add the most value by helping clients avoid a bankruptcy filing, or by successfully resolving a case through a consensual transactional restructuring.
Suppose you were a German bank lending to a Spanish debtor under a loan agreement governed by German law. Once your Spanish debtor stops paying, the bank would have to obtain a German legal judgment and would then have to enforce it in Spain. Any measure to secure the debtor's assets in the meantime, is typically subject to the jurisdiction where the asset is located, or subject to lengthy recognition proceedings. Having to resort to local law measures usually puts foreign creditors in a worse-off position than local ones.
Fraudulent debtors are trying to use a disputable interpretation of Article 37, para 4 of the Special Pledges Act on the outcome of enforcement over a special pledge against the rights of secured mortgage creditors.
The Bulgarian legislator is notorious for leaving gaps in enacted legislation. Often such legal gaps combined with inexperience, or even worse – corruption of judges, lead to questionable judgments being handed down. Several of these judgments have put mortgage creditors at risk of losing their collateral in the past year.
In December 2013, the Bank of Slovenia adopted exceptional measures resulting in the annulment of financial instruments held by shareholders and subordinated bondholders for the purpose of burden-sharing in rescuing five Slovenian banks.1 In its decision of 19 July 2016, the European Court of Justice confirmed that such burden-sharing is not contrary to EU law; however, the Slovenian public remains divided.
A decision rendered during the sometimes peaceful interlude between Christmas and New Year’s is worth reading, and heeding. Hurston v. Anzo (In re Hurston), Adv. Proc. No. 15-2026 (Bankr. N.D. Ga. Dec. 27, 2016) is a helpful reminder to anyone representing lenders or creditors which are hell-bent-for-leather to pursue a non-dischargeability claim against a debtor that submits a false written statement (e.g., a personal financial statement) to obtain credit.
The Supreme Court is considering whether to grant review of two bankruptcy cases. On October 3, 2016, the Supreme Court invited the Solicitor General to file briefs expressing the views of the United States. Because the Supreme Court’s justices normally give significant weight to the federal government’s recommendations regarding interpretations of federal statutes (here, the Bankruptcy Code), the Solicitor General’s forthcoming briefs could influence whether the Supreme Court grants cert. on the two notable bankruptcy cases.
Southwest Securities v. Segner
Since the European Commission adopted the recommendation on restructuring and second chance in 2014, it has been working on the evaluation of its initiative and the introduction of a European legal framework. In 2015 the Capital Markets Union Action Plan included the announcement of a legislative initiative on early restructuring and second chance. Finally, on 22 November 2016, the European Commission published its proposal for a European Directive on preventive restructuring frameworks and a second chance for entrepreneurs.
Two recent Bankruptcy Court cases both remind and illustrate the power and risks presented by discovery of facts and documents under Bankruptcy Rule 2004, showing that it can compel third parties to provide information to support later litigation against them or cause them to lose their 5th Amendment right against self-incrimination.
District courts can hear an appeal from any interlocutory order, as long as they agree to accept the appeal. 28 U.S.C. § 158(a)(3). Final judgments, orders and decrees are always immediately appealable. 28 U.S.C. § 158(a)(1). Certain interlocutory orders, such as orders increasing or reducing the exclusive time periods for a debtor to file and obtain acceptance of a plan for reorganization under Chapter 11 are also immediately appealable. 28 U.S.C. § 158(a)(2).