Banks regularly enter into commercial relationships with their customers such as opening new depository accounts. These relationships are often contractual in nature and seem relatively straightforward until an unexpected incident occurs that causes the relationship to unravel. What then are the duties owed by each party to each another? The default rule seems to be that the terms and conditions that the parties agreed to at first govern the parties’ actions throughout their banking relationship.
The special purpose liquidators of Queensland Nickel Pty Ltd (in liq) have been successful in their application in the Supreme Court of Queensland for freezing orders against Mr Clive Palmer and several companies which he controls.[1]
Background
The term “golden shares” is often referred to equity interests held by a specific party—commonly a lender or investor—that authorize such party to block or prevent a corporate entity from filing bankruptcy. Such shares are often negotiated by a party that wants to ensure that its consent is obtained before any bankruptcy is commenced. Without such consent, the party holding the golden shares can seek to dismiss to a corporate bankruptcy filing by based on a lack of corporate authority.
1. 最实在的权利 清算优先权，或优先清算权(Liquidation Preference)，是指“清算事件”发生时，投资人在清算财产分配过程中享有优先顺位的权利。通常，越晚进来的投资人清算优先的顺位越高，但在老投资人强势时也可能会约定新老投资人之间平等顺位，按投资金额比例甚至股权比例分优先金额。相比实际上基本用不上的分红优先权，清算优先权是更实用、也更可能给投资人创造实际价值的经济权利。
2. 好坏通吃 清算优先权可以在公司情况不佳(downside)时让投资人优先拿回一点补偿，也可以在公司获得好的收购机会(upside)时使得投资人获利更多。
3. 只是清算？ 如果“清算事件”仅包括法律意义上的清算(例如公司解散或破产时的清算)，那实际用途不大，关键是它还包括“视同清算事件”。“视同清算事件”的情形通常包括导致控制权变更的合并、收购，以及出售、租赁、转让、以排他性许可或其他方式处置公司全部或大部分资产的事件。考虑到解散或破产清算时公司多半已经没有太多资产可分，发生并购事件才是清算优先权最大的用武之地。
The Bankruptcy Code often instructs a trustee or debtor to perform an act or make an election within a certain time. Sometimes the relevant provisions are intended to benefit a party in interest who is affected by a debtor’s or trustee’s action or election. Unfortunately, some of the provisions that prescribe a trustee or debtor to act fail to provide a remedy to the affected party in interest in the event the trustee or debtor does not act in compliance with the Code.
The Senate Legal and Constitutional Affairs Legislation Committee (“the Committee”) has endorsed the passing of the Bankruptcy Amendment (Enterprise Incentives) Bill 2017 (“the Bill”) in its report dated 21 March 2018.[1]
Certified to the Privacy Shield? Great! So you’re done in terms of GDPR compliance, right? Think again.
As we have discussed in previous newsletters, no matter where you are in the world, the General Data Protection Regulation (GDPR) applies to you if you are collecting or processing personal data of any EU individual. The law goes into effect in May.
In our Intellectual Property Law Update of December 2016 we advised you of the recent decision of the Bankruptcy Appellate Panel for the First Circuit Court of Appeals (the “BAP”) in Mission Products Holdings, Inc. v. Tempnology (In re Tempnology, LLC) upholding the rights of a licensee of trademarks to continue use of trademarks after the debtor’s rejection of the trademark license. As set forth below, the First Circuit recently reversed that decision.
The Queensland Court of Appeal has upheld an appeal by the liquidators of Linc Energy Limited (In Liquidation) (“Linc”) and given full effect to their disclaimer of contaminated mining property and onerous obligations the subject of an environmental protection order (“EPO”) issued by the Queensland Department of Environment and Science (“DES”).[1]
3月9日，最高人民法院院长周强在第十三届全国人大一次会议第二次全体会议上作最高人民法院工作报告，重点提及25个在过去五年中具有全国代表性并深具行业参考意义的大案要案，金杜代理的 “重庆钢铁破产重整案”、“东北特钢破产重整案”和“华为诉美国交互数字公司滥用市场支配地位案” 入选报告重点典型案件。
“东北特钢破产重整案：东北特钢重整之后两个月实现扭亏为盈，开启了民营控股的混合所有制运营新模式，为辽宁的国企改革提供了新路径。”
东北特钢破产重整案是近年来破产重整领域内出现的债务总额最高的案件之一，受到社会各方的高度关注。重整计划综合运用留债、一次性现金清偿、债转股等手段，妥善处理了逾七百亿元的债务问题。重整期间尊重当事方的意愿，运用市场的机制和手段，通过公开、公平、公正的程序遴选了重整投资人，得到了债权人的普遍认可。该案具有诸多创新之举，在重整投资人引进、关联公司整体重整、债权清偿方案设计、债转股等方面都进行了创新，为破产重整实践、立法完善和理论研究提供了成功的案例。