Global FDSI Briefing
Welcome to our latest quarterly briefing on legal developments across our global network. I hope you find the articles insightful and thought provoking. Highlights this quarter include recent developments in Italian derivatives case law, an overview of the amendments made to Spain’s insolvency regulation and the UK’s FCA issuing first warning notices against individuals.
If you have any questions or would like further information please do not hesitate to contact me, or one of our global key contacts.
[Matthew Allen]
Matthew Allen
Financial Services Disputes and Investigations
ECHR finds double jeopardy: Crimes sanctioned by Consob and heard by the Court of Appeal cannot be tried again in court proceedings
The UNCITRAL Model Law on Cross-Border Insolvency is designed to supplement States' insolvency laws with a framework to address cross-border insolvency proceedings.
Pillar Denton Ltd & others v Jervis & others [2014] EWCA 180 (“Game Station”)
The outcome of this appeal has been awaited with a high degree of interest. The issue was the extent to which rent should be payable as an expense of an administration or liquidation; if it is payable as an expense, it sits near the top of the priority order for the distribution of the tenant’s assets, and will usually be paid in full. Otherwise, it is among the unsecured debts, and the landlord will have to wait for whatever dividend is ultimately payable.
The High Court has ruled that liquidators of lessors can disclaim leases, thus terminating the leasehold interests of tenants.
However, yesterday's High Court decision in Willmott Growers Group Inc. v Willmott Forests Limited (Receivers and Managers Appointed) (In Liquidation) [2013] HCA 51 leaves open another issue: do liquidators need to get Court approval before exercising this power, and, if so, how easy or difficult would it be to get that approval?
Key Points
Key Points:
For a company to be entitled to subrogation under section 560, it must ensure that it meets the strict requirements of section 560 and does not pay entitlements directly to the relevant company's employees.
Six month extensions to convening periods should not be seen as a fait accompli, particularly if the administrator's application is opposed.
There is a commonly held belief that courts will readily grant an administrator's application for an extension to the convening period. This might have been true once, but it is fast turning into an urban myth, judging by two recent decisions in the Federal Court.
The recent decision of Modcol Pty Ltd v National Buildplan Group Pty Ltd [1] addressed whether leave should be granted to a subcontractor to allow it to commence proceedings against a contractor in administration in respect of the subcontractor's rights under the Building and Construction Industry Security of Payment Act 1999 (NSW) (the SOP Act).
The European Court of Justice (the “ECJ”) this morning delivered its ruling in the case of Hogan and Others v Minister for Social and Family Affairs, Ireland, Attorney General (the “Waterford Crystal case”). The Court held that Ireland has failed to fulfil its obligations under Article 8 of Directive 2008/94 EC (the “Directive”) on the protection of employees in the event of the insolvency of their employer.
The NSW Government has accepted some of the key recommendations of the Recommendations of the Independent Inquiry in Construction Industry Insolvency in NSW, including the introduction of bonds. We know that the Government will: