Under the 1992 ISDA Master Agreement, following an event of default, there is either an automatic termination or the non-defaulting party can serve a notice designating an Early Termination Date. There then has to be a determination by the non-defaulting party of the compensation that is owed by one party or the other. This is done by closing out the transactions, which involves determining gains or losses in replacing or providing the economic equivalent of the terminated transactions. Once that is done, a statement is served setting out the calculations.
Welcome to this month's edition of our commercial and tech update, covering a wide range of topics from Facebook's lacklustre approach in dealing with IP infringement to further confirmation on the Courts' approach to liquidated damages.
(Mis)Adventures in advertising
Welcome to the inaugural edition of 'Going concerns', in which we strive to bring you the latest updates on restructuring and insolvency law. For this issue, we focus on Singapore and provide:
While it is common practice in Canada to seek certain emergency orders on an ex parte basis (i.e. where only one party (and not the adversary) appears before a judge), applicants for such orders are held to a high standard of candour with the court.
Many secured creditors see their position in absolute terms. They rely on their general security and aggressively assert their priority over unsecured creditors, such as trade creditors. However, a recent decision of the Ontario Court of Appeal(306440 Ontario Ltd. v. 782127 Ontario Ltd. (Alrange Container Services), 2014 ONCA 548) demonstrates that creative arguments by trade creditors may allow them to take priority over even secured creditors in certain circumstances, by using trust principles to remove assets from the estate.
New measures intended to be implemented by the FCA next year, will have a significant impact on companies with controlling shareholders who are premium listed and also on those companies considering joining the premium segment. They follow the regulator's assessment of the premium listing regime over the last couple of years, as it considered how to bolster minority shareholder protection without risking damage to London's attractiveness as a listing venue.
Empty units, falling yields and the spectre of tenant defaults are increasingly common issues that landlords have had to face in the current recession. To add to this landlords have also had to confront a number of high profile CVAs including JJB Sports (twice), Blacks Leisure, Stylo Group, Focus DIY, Fitness First and Travelodge to name a few.
The Take-Away
Missing the limitations period for bringing a court action to recover a debt does not extinguish other legal rights and remedies in respect of that debt, such as bringing an application for bankruptcy or proving a claim in a bankruptcy estate.
The Case
In the recent decision of Frank v. Farlie, Turner & Co., LLC, 2011 ONSC 5519, Mr. Justice Perell of the Ontario Superior Court of Justice found, among other things, that punitive damages are not available under Part XXIII.1 of the Ontario Securities Act as such damages are inconsistent with the scheme and purpose of Ontario’s statutory secondary market disclosure liability regime. In so doing, the court confirmed the fundamental importance of liability limits in continuous disclosure claims against directors and officers.
- Leases Over One Year Must be Registered in all Provinces Except Québec
In recent years the Ontario Personal Property Security Act (“PPSA”) changed the scope of its application to include all leases for a term of more than one year, regardless of whether it is a “true” or “financing” lease. This is a different rule than exists in the United States and one often missed on cross border transactions.