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:

Back in October 2017, the Pre-Action Protocol for Debt Claims (“PAP”) was launched to very little fanfare. PAP is part of the Civil Procedure Rules which govern how parties deal with litigation claims through the County Court and is the first time that strict rules have been put in place for pre-action conduct on a debt matter. I wrote an article about PAP at the time to explain the ins and outs of it.

Much has already been said about the demise of Carillion and the impact of its liquidation on the various parties with whom it contracted. In this article, I would like to examine what light the demise of Carillion throws on themes commonly encountered within insolvency and whether there are lessons to be learned for everyone.

Having read the various reports in the press, it is clear that whilst Carillion entered into multi-billion pound government contracts, the contracts had extremely small profit margins, ultimately rendering the business unsustainable.

When faced with bankruptcy proceedings, it is paramount that you act quickly in order to avoid unnecessary costs and stress.

The bankruptcy proceedings

As of 1st October 2017, debt recovery and collections in both the commercial and consumer world is going to see a big change with the introduction of the debt recovery Pre-Action Protocol (‘PAP’).

There has been a previous pre-action protocol, introduced in 2014, which was in many ways accepted as a sensible approach to collection of all debts.

Ever since the introduction of the ‘out of court’ procedure to appointment an administrator, there has been a practice of filing successive Notices of Intention to Appoint an Administrator. This practice has been the topic of much discussion and its legality was recently addressed by the Court of Appeal in the case of JCAM Commercial Real Estate Property XV Limited –v- Davis Haulage Limited [2017] EWCA Civ 267.

Introduction

Today, thanks to the high-cost of current court fees, small to medium-sized enterprises (SMEs) face the problem of not getting paid by a customer and then, subsequently, not being able to go to court to get paid.

On 6 April 2017, the Insolvency Rules 2016 came into force. The new rules aim to modernise the insolvency process; and make it more efficient. Physical meetings, as the default decision making process, have been abolished. Where the debtor ‘customarily’ communicated with a creditor by way of email notices can be served by email under deemed consent, rather than through the post. The rules also introduce the use of websites to publish notices, without the need to inform creditors of any postings.