In late August 2022, the Spanish Parliament passed the transposition into Spanish law of the Directive (EU) 2019/1023 of the European Parliament and of the Council, of June 20th 2019, on Preventive Restructuring Frameworks. The draft of this new Act was subject to multiple amendments and created great local expectations (also considerable controversy). The text finally enacted in Law 16/2022 introduces major reforms in the insolvency field which we hereby depict.

Introduction of the so-called “Restructuring Plans”

On 11 November 2022, Mr Justice Kawaley ordered the first appointment of restructuring officers inRe Oriente Group Limited (FSD 231 of 2022) under the new Cayman Islands restructuring regime, with reserved written reasons to follow. We provide a brief update on some of the key takeaways from the hearing below.

Directors of Australian companies face significant personal monetary – and potential criminal and adverse professional – consequences if they allow the company to trade whilst insolvent.

Australian insolvent trading laws are harsher, and more frequently utilised to prosecute directors personally, than in many other jurisdictions including in the US and the UK.

Accordingly, frequent assessment of a company's solvency by its directors is crucial, particularly in financially difficult times, as are active steps to address any potential insolvency.

As a service to our clients, we have prepared this compendium of the Insolvency Act, 2003 together with related regulations and rules, incorporating all amendments to date.

This version of the compendium takes into account changes and updates to the legislation as set out in the recent revisions.

In brief

The UK Supreme Court has handed down its long-awaited judgment in relation to the case of BTI 2014 LLC (Appellant) v. Sequana SA and others (Respondents) [2022] UKSC 25, concerning the duty of directors of a company registered under the Companies Act 2006 to consider (and act in accordance with) the interests of the company’s creditors.

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Due to the recent challenging economic environment, the law’s treatment of creditors’ interests in a restructuring or insolvency has been a hot topic. From a creditor’s perspective, its objective will be straightforward: to maximize its recovery as soon as possible when its interests are put at risk by financial challenges facing the debtor. From a shareholder’s perspective, its agenda will generally be quite different: to achieve certainty and stability through a debt restructuring so that the company can stay afloat and carry on business without the risk of a winding up order.

With a marked increase in large-scale cross-border insolvency and restructuring proceedings in the Cayman Islands and elsewhere, there is a greater focus on principles of comity and co-operation between courts and collaboration between officeholders.

In brief

In brief

The UK Supreme Court has handed down its long-awaited judgment in relation to the case of BTI 2014 LLC (Appellant) v. Sequana SA and others (Respondents) [2022] UKSC 25, concerning the duty of directors of a company registered under the Companies Act 2006 to consider (and act in accordance with) the interests of the company’s creditors.

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引言

英国终审法院最近就 BTI 2014 LLC 诉 Sequana SA 及其他 [2022 UKSC 25] 一案（“Sequana 案”）颁布一份万众期待的判决。Sequana 案的法理将于开曼群岛以至其他普通法司法管辖权区成为极具说服力的法律根据。

Sequana 案是一项有用的判决，原因如下：

• 该案不但确认董事对股东负有受信责任而须真诚以公司最佳利益行事的传统观点，同时指出董事于公司无力偿债或濒临无力偿债或可能进行无力偿债清盘或管理时，须考虑债权人利益或以其行事（“债权人利益责任”）。
• Sequana 为英国终审法院审理的首宗案件裁定董事于哪些情况下必须考虑公司债权人利益，不论债权人利益责任可否于公司无力偿债前触发，以及股东可否认可对债权人利益责任的潜在违反。

背景