A Ministry of Justice Report released in March 2012 has confirmed that the implementation of the Third Parties (Rights against Insurers) Act 2010 (the "Act") is to be delayed until 2013.
Introduction
(Originally published on September 29, 2011)
The Act of May 20 2011 implements EU Directive 2009/44/EC (amending the EU Settlement Finality Directive and the EU Collateral Directive), and amends the Collateral Act of August 5 2005. The Collateral Act has always been a lender-friendly implementation of the Collateral Directive. Most of its provisions have not changed and in general, the Collateral Act remains favourable to creditors in insolvency situations and other contexts.
Constitution and perfection of collateral arrangements
A recent Court of Appeal case confirms that the Foreign Judgments (Reciprocal Enforcement) Act 1933 does apply to judgments in insolvency matters and that the Insolvency Act 1986 can be used to enforce a foreign judgment.
In New Cap Reinsurance Corporation Ltd & Anr v AE Grant & Ors [2011] EWCA Civ 971, the Court of Appeal upheld the first instance decision of the Companies Court that a judgment obtained in Australia could be enforced in England under section 426 of the Insolvency Act (the IA) and at common law.
NEW CAP RE: THE FACTS
Constitution and perfection of collateral arrangements
Insolvency aspects of collateral arrangements
Beneficiary of collateral
Remedy for potential conflict with depository
Rights attached to the collateral
Constitution and perfection of collateral arrangements
Insolvency aspects of collateral arrangements
Beneficiary of collateral
Remedy for potential conflict with depository
Rights attached to the collateral
Since the entry into force of the Financial Collateral Act of 15 December 2004 (the "Collateral Act") implementing Directive 2002/47/EC on financial collateral arrangements as regards linked systems and credit claims (the "Collateral Directive"), financial collateral arrangements have benefitted from increased flexibility and legal certainty in Belgium.
On 16 September 2011 the Netherlands Supreme Court rendered an important judgment regarding the exercise by a bank of its right to reverse a direct debit (LJN BQ873 SNS Bank/Pasman q.q.). In light of this judgment it can be concluded that, in principle, a bank may exercise its right of reversal not only if the direct debit caused the account to be overdrawn or (if an overdraft facility has been granted) the limit to be exceeded, but also if the bank will, as a result of the debtor/payer's bankruptcy, be unable to recover the claim resulting from the direct debit.
As we previously report here, Ambac Financial Group, Inc. (“AFG”), the holding company for the bond insurer, Ambac Assurance Corp. (“AAC”), filed for bankruptcy in November 2010 after it was unable to raise additional capital or come to terms with its debt holders.