The recent decision of the Supreme Court of Canada in Saulnier (Receiver of) v. Saulnier has changed the basis for determining whether a licence is property under a provincial Personal Property Security Act (“PPSA”) and the federal Bankruptcy and Insolvency Act (“BIA”).

The PPF has issued a good practice guide for trustees of schemes with an insolvent employer, which is aimed at taking them through the assessment period effectively and efficiently and which takes into account the PPF's experience of the common issues experienced by trustees during an assessment period.

On 21 October 2008, after a year-long investigation, the European Commission (Commission) approved a restructuring plan designed to restore the viability of the French household firm FagorBrandt. The firm produces a range of large household appliances such as refrigerators, washing machines and stoves. The proposed restructuring plans will include the sale of certain activities and plant closures and a refocus on high added value products.

On July 7, 2008 specific provisions of the Insolvency Reform Act, 2005 and the Insolvency Reform Act, 2007 were proclaimed into force by Order in Council. As a result, the Wage Earner Protection Program Act (the “WEPPA”) and certain related amendments to the Bankruptcy and Insolvency Act (“BIA”) have come into immediate effect.

Certain of those amendments are intended to protect current and former employees of insolvent companies and will affect lenders to insolvent businesses.

The relationship between Canada and the United States is one of the closest and most extensive in the world. With the equivalent of $1.6 billion in bilateral trade every day3, it is no surprise that a large number of US companies have subsidiary operations and assets located in Canada. Despite numerous socio-economic similarities between both countries and legal regimes both anchored in the tradition of common law, there are a number of legal differences that have the potential to significantly impact US companies doing business in Canada.

On 14 March 2008 the Court of First Instance (CFI) issued two orders rejecting applications for interim measures by two subsidiaries of a Polish steel producer (Buczek) to suspend the application of a Commission recovery decision pending the final judgment in the case. Between 1997 and 2003 Poland was granted a derogation from the general prohibition on restructuring aid to the steel sector. The derogation was conditional upon Poland implementing a restructuring plan. Aid was provided to Buczek, who failed to properly implement its restructuring plan and went bankrupt in 2006.

It is clear from the recent collapse of Bear Stearns that the real impact of the credit crunch is now being felt. With this in mind, how can landlords and tenants of commercial properties prepare themselves for a potential rise in the number of corporate insolvencies?

Landlords’ remedies – think outside the box

The landlord of a commercial property faced with an insolvent tenant will usually have two concerns:

On 14 February 2008 the German Federal Parliament deliberated a draft bill submitted by the Federal Ministry of Justice concerning the reform of Germany’s insolvency law. The draft bill envisions, in particular, regulation for stability against insolvency (Insolvenzfestigkeit) for licence agreements.

Typically, courts will only rarely and sparingly interfere with contractual rights that parties freely negotiate and agree upon.

However, in Protiva Biotherapeutics Inc. v. Inex Pharma­ceuticals Corp., the British Columbia Court of Appeal recently determined that the courts can adjust contractual rights in order to achieve a workable plan of arrangement proposed by a company under the British Columbia Business Corporations Act (the "Act").

With commentators predicting that the real impact of last summer’s credit crunch on corporate liquidations has yet to be felt, how can landlords and tenants of commercial properties prepare for a potential rise in the number of corporate insolvencies?

LANDLORDS’ REMEDIES - THINK OUTSIDE THE BOX

The landlord of a commercial property faced with an insolvent tenant will usually have two concerns: