In times of crisis such as the ongoing COVID-19 pandemic, businesses are required to make important decisions with very significant implications at an accelerated pace and in the face of the unknown. This was the case when governments across the globe ordered borders to shut and non-essential activities to scale down or stop almost a year ago. This remains true as governments have announced and begun implementing plans to restart the economy and financial pressures are mounting rapidly on businesses to resume operations while facing an uncertain economy.

The highest profile duty to consult case this past year was the Federal Court of Appeal’s decision in Coldwater First Nation v. Canada (Attorney General), 2020 FCA 34, relating to the Trans Mountain Pipeline Expansion Project (TMX Project). This was a judicial review of the federal Cabinet’s decision to approve the TMX Project for the second time subject to numerous conditions. The TMX Project involves the twinning and expansion of an existing pipeline from Edmonton, Alberta to Burnaby, British Columbia.

The Kingdom of Saudi Arabia overhauled its corporate insolvency framework in 2018 with the introduction of a new bankruptcy law. In this client alert we examine the new Bankruptcy law in detail.

Executive Summary

The economic impact of the COVID-19 pandemic led to a wave of creditor schemes of arrangement ("schemes") and restructuring plans ("RPs") in the second half of 2020, which shows no sign of abating in 2021. For the uninitiated, the scheme (a long-established tool) and the newer RP process are court led UK restructuring options that a company can use to bind a minority of creditors into a restructuring. An RP can also be used to "cram down" an entire dissenting creditor class into a deal where certain conditions are met.

In 2020, commercial chapter 11 bankruptcy filings climbed to their highest levels in recent years, as COVID-19 disruption sparked sharp declines in GDP and volatile stock market swings. Notably, the pandemic accelerated the restructurings of some companies that were already on the precipice of financial distress, particularly in the retail, energy, travel and hospitality sectors.

A report about the administrative practice of the German Takeover Panel in the last decade

The exemption from the requirement to launch a mandatory offer based on the restructuring of a target company is the most frequently applied exemption from the mandatory offer procedure in German takeover law. In view of the expected increase of restructuring cases due to the COVID-19 pandemic, it is likely to become even more important.

General partner-led fund restructurings accounted for the majority of private equity secondaries volume in 2020 as managers sought liquidity in a flat exit market

Private equity (PE) fund general partners (GPs) faced a challenging year for returning cash to their investors, leading many to turn to GP-led fund restructurings to create liquidity for investors as fund lives expire.

HEADLINES

• In March 2020, credit insurer Euler Hermes forecast a 43% increase in insolvencies in the UK in 2021, as well as a 26% uptick in France and 12% in Germany
• By December 2020, ratings agency S&P was forecasting European defaults rising to as much as 8% by the end of 2021

There have been fewer European insolvencies and restructurings than anticipated during the COVID-19 pandemic, but distressed deal activity may accelerate as soon as economies are finally able to reopen.

Prior to December 23, 2020, it had been unclear whether a court had the jurisdiction to grant an order assigning a contract without counterparty consent, on application by a court-appointed receiver (a “Receiver”).

Prior to the introduction of the Preventive Restructuring Framework by the StaRUG out-of-court restructurings in Germany other than the restructuring of German law-governed bonds generally required unanimous approval by all affected creditors. Existing in-court procedures were only available in case of insolvency, and entailed substantial court involvement.