On August 10, 2017, the U.S. Supreme Court rescinded the grant of certiorari in PEM Entities LLC v. Levin on the grounds that review had been “improvidently granted.” The case seemingly provided a perfect vehicle to resolve the circuit split on whether federal or state law governs debt recharacterization in bankruptcy, and less than two months after the Court first agreed to hear the case, its dismissal came as a surprise.

In recent years, courts have become increasingly critical of the doctrine of equitable mootness, a judicially created abstention doctrine that allows appellate courts to dismiss appeals from a bankruptcy court’s confirmation order in certain circumstances. Although the doctrine is meant to be applied only sparingly, to avoid unscrambling complex reorganizations on appeal, it has been invoked in noncomplex cases or where limited relief is practicable. As a result, some circuit courts have urged a more limited application of the doctrine.

In March 2017, the States of Guernsey approved the reform of Guernsey’s insolvency laws, which afford greater protection to creditors and investors. The necessary legislative amendments are currently being drafted although the date of issue is yet to be determined.

Key changes proposed include:

Over the last several decades, the enforcement of intercreditor agreements ("ICAs") that purport to affect voting rights and the rights to receive payments of cash or other property in respect of secured claims have played an increasingly prominent role in bankruptcy cases. Although the Bankruptcy Code provides that "subordination agreement[s]" are enforceable in bankruptcy to the same extent such agreements are enforceable under applicable nonbankruptcy law, the handling of creditor disputes regarding such agreements has been inconsistent.i

In this case, the firm was instructed by the English liquidators of Arck LLP (in liquidation) to assist in the recovery of assets misappropriated from a large number of British investors and channelled through Jersey corporate and trust structures as part of a fraudulent collective investment scheme.

The British Virgin Islands ("BVI") is a long-standing jurisdiction of choice for incorporating joint venture and private equity vehicles. In more recent years it has also become an established option for investment funds. This is due to its business-friendly and flexible main corporate statute, the BVI Business Companies Act (the "Act"), as well as the BVI’s modern regulatory and judicial regime.

Plans and Schemes of Arrangement in the British Virgin Islands

This briefing note provides an outline of the different processes of voluntary and compulsory winding up under the Companies (Guernsey) Law, 2008 (as amended) (the “Law”). It does not cover striking off companies or the specific provisions on winding up of protected cell companies and incorporated cell companies. Further information on the effect of the Law on the winding up of these company structures can be found in our separate briefing notes on those subjects.

The mechanics of a voluntary winding up

1 / FEBRUARY 2017 | Cell Companies in Guernsey BRITISH VIRGIN ISLANDS CAYMAN ISLANDS GUERNSEY JERSEY CAPE TOWN HONG KONG LONDON SINGAPORE WWW.CAREYOLSEN.COM FEBRUARY 2017 INVESTMENT FUNDS & INSURANCE CELL COMPANIES IN GUERNSEY 2 / FEBRUARY 2017 | Cell Companies in Guernsey INTRODUCTION This note summarises Guernsey law relating to protected and incorporated cell companies. For more detailed information on protected cell companies and incorporated cell companies please see the separate briefing notes on each.

This briefing note describes the key features of the incorporated cell company (“ICC”) and summarises the formation, structure and liquidation procedures particular to this type of company.

Key features

The BVI Commercial Court (the Honourable Justice Davis-White QC [Ag]) has recently ordered the appointment of liquidators over Pacific Andes Enterprises (BVI) Limited, Parkmond Group Limited, and PARD Trade Limited (the “Companies”), three BVI incorporated companies forming a key part of the China Fishery Group.

The applications were unsuccessfully contested on the principal ground that the appointment of liquidators would irretrievably damage the prospects of a wider, global restructuring of the Pacific Andes Group.