In a second application heard on the same day, Hildyard J considered an application by the administrators of Lehman Brothers Europe Limited (LBEL) for directions that would enable a surplus to be distributed to the sole member of LBEL while LBEL remained in administration. The proposed scheme had material benefits for both shareholders and creditors. The administrators acknowledged that the orders sought were an indirect means of circumventing the Insolvency Act 1986 (UK), which does not expressly provide for directors to make distributions during an administration.
1. El problema y la propuesta
No passado dia 1 de julho de 2017 entrou em vigor o Decreto-lei 79/2017 de 30 de junho de 2017 (“DL 79/2017”), que altera, entre outros, o Código da Insolvência e da Recuperação de Empresas, alterando, nomeadamente, o regime jurídico do Procedimento Especial de Revitalização (“PER”) que fica agora reservado a empresas.
Destacamos ainda outras alterações relevantes introduzidas pelo DL 79/2017:
On 1 July 2017, Decree-law 79/2017, of 30 June 2017 (“DL 79/2017”), entered into force. This piece of legislation amends, most notably, the Insolvency and Recovery of Companies Code and the legal framework of the Special Revitalization Procedure (“SRP”), which is now reserved only to companies.
Other noteworthy amendments introduced by DL 79/2017 are as follows:
The Court of Appeal has recently dismissed an appeal from the High Court's judgment (discussed in our September 2016 update) setting aside a compromise under Part 14 of the Companies Act 1993 after finding that the challenging creditors, who had voted against the compromise, had been unfairly prejudiced by the decision to call only one meeting of creditors.
In McIntosh v Fisk [2017] NZSC 78, the New Zealand Supreme Court had to consider whether the liquidators of a Ponzi scheme were entitled to recover from an investor a payment that the investor had received shortly before the appointment of the liquidators.
La Dirección General de Tributos, en dos recientes consultas vinculantes, concreta el momento en el que los propietarios de acciones de una sociedad en concurso de acreedores pueden computar las pérdidas patrimoniales experimentadas con motivo de tal situación.
La Dirección General de Tributos, en la consulta vinculante V0624-17, de 9 de marzo del 2017, analiza cuándo y cómo puede computar una pérdida patrimonial el propietario de unas acciones de una sociedad suspendida de cotización y en fase de liquidación en un procedimiento concursal.
The case of Singularis Holdings Ltd v Daiwa Capital Markets Europe Ltd [2017] EWHC 257 (Ch) concerned the liability of a stockbroking company for failing to investigate fraudulent transactions.
In Akers & Ors v Samba Financial Group (Rev 1) [2017] UKSC 6, the UK Supreme Court confirmed that British insolvency officers can only void dispositions of a company's assets held on trust in certain circumstances.
The Supreme Court in McIntosh v Fisk upheld the Court of Appeal decision permitting the liquidators of Ross Asset Management Ltd (RAM) to claw back the fictitious profits paid out to Mr McIntosh. However the claw back did not apply to the original investment of $500,000.
The majority found that McIntosh had a defence for the $500,000 as he had provided "real and substantial valuable consideration". Once RAM misappropriated the $500,000 it became indebted to McIntosh for that amount, this equated to the provision of valuable consideration.