In the twelfth edition of the Going concerns, we cover set-offs and the net result of a creditor dealing with a company in liquidation; the first cross-border pre-pack scheme filed in the Singapore International Commercial Court ("SICC") by a foreign unregistered company that has been successfully sanctioned in Singapore: Re No Va Land Investment Group Corporation [2024] SGHC(I) 17 ("No Va Land"); and UAE's new bankruptcy law that came into effect on 1 May 2024, a relatively substantial overhaul of the onshore insolvency and restructuring regime in the UAE.
On April 12, 2024, the U.S. Supreme Court issued an important decision in the case of Macquarie Infrastructure Corp. v. Moab Partners, L.P., No. 22-1165. Justice Sotomayor, writing for a unanimous Court, ruled that “pure omissions are not actionable under Rule 10b-5(b).” In other words, a pure omission (i.e., where a speaker says nothing) cannot support a private claim under Section 10(b) of the Securities Exchange Act of 1934 (the “Exchange Act”) and Rule 10b–5, even if such an omission could constitute a violation of Item 303 of Regulation S-K (“Item 303”).
En 2023, le nombre de défaillances d’entreprises est en hausse par rapport à l’année précédente. À cela s’ajoutent le rallongement des délais de paiement, l’inflation, des taux d’intérêt toujours élevés...À la lumière dececlimat monétaire et financier instable se profile la gestion du risque crédit.
On 31 October 2023, Federal Law No. 51 of 2023 Promulgating the Financial and Bankruptcy Law (the Bankruptcy Law) was published in the United Arab Emirates (UAE) Official Gazette, repealing the prior federal law on bankruptcy (Federal Law No. 9 of 2016, the Prior Law) and significantly developing the bankruptcy regime in the UAE.
In one of the most highly anticipated judgments in the European restructuring market in recent years, on 23 January 2024, the English Court of Appeal overturned the High Court’s decision sanctioning the Adler restructuring plan.1
In this eleventh edition of the Going concerns, we touch upon the clarity provided by the Singapore Court of Appeal in the recognition of foreign solvent liquidations in Singapore, a potential new tool against debtors defrauding creditors, and an update on the sanction of an administrative convenience class in the Singapore High Court.
We hope you enjoyed this edition of the Going concerns and we look forward to your continued support in the coming editions of the same. As usual, please feel free to contact us should you like to learn more on any topic.
Content
Introduction
A recent Commercial Court decision has raised an intriguing question of private international law: can a foreign judgment be enforced in England and Wales if it is not enforceable in the country where it was given?
The Commercial Chamber of the French Supreme Court ("Cour de cassation") has recently handed down a decision of particular interest for distressed M&A transactions: Cass. com. 1er mars 2023, no. 21-14.787, FS-B.
Alexandre Koenig, partner and head of the firm's restructuring and insolvency practice in France analyses the legal and practical consequences of this decision for sellers of French distressed companies.
Context
Over recent years, a prolonged period of low interest rates, together with a competitive financing market, has resulted in greater leverage and control for private companies (and their sponsors) when it comes to negotiating terms with current and potential creditors. There has also been, as a consequence of this dynamic and the general availability of capital, an expansion in debt document flexibility over the course of the last decade.