The dialogue is changing yet is the law enabling the practical change Directors need?

Achieving significant cultural shift in any business environment is no easy task, so it’s by no means ground-breaking to declare that after 1 year in operation, it still cannot be said that the new “Safe Harbour” legislation has resulted in a cultural change among directors.

It is common knowledge to many that parties to a construction contract have the right to adjudicate at any time. This is a right implied by statute and a right that cannot be fettered. However, it seems the limits of such a right are now somewhat more nuanced. In the recent case of Michael J. Lonsdale (Electrical) Limited v Bresco Electrical Services Limited (in Liquidation) [2018] EWHC 2043 Fraser J has considered how the Insolvency Rules and Adjudication work together and what this means for the right to adjudicate at any time.

In an urgent application, the Court of Appeal held that a CVA should be precluded from becoming effective where an unanticipated claim of €126.7m was submitted after the CVA was approved but before the statutory bar on new claims had lapsed.

The Judgment handed down by the Court of Appeal in Orexim Trading Ltd v Mahavir Port And Terminal Private Ltd (formerly known as Fourcee Port and Terminal Private Ltd) [2018] EWCA Civ 1660, [2018] All ER (D) 101 (Jul) on 13 July 2018 provided important clarification as to the service of claims under s.423 of the Insolvency Act 1986 ("IA 1986") out of the jurisdiction.

The Facts

近年来，我国宏观经济增长放缓，国家调整产业和信贷政策，并逐渐加强金融监管，商业银行的资产质量压力有所增加，十亿甚至百亿级别的债务逾期或潜在违约浮出水面。这些巨无霸级别的潜在不良贷款风险，迫切要求商业银行审查并改善贷前贷后管理中的遗漏和问题，也对商业银行的危机处理能力提出了更高的挑战。

大敌当前，痛定思痛，当危机来临时，商业银行的管理层和执行层需要的是冷静的思考、周密的策划，以及必要时刻壮士断腕的决策力。从本团队近期参与处理的几项复杂的债务逾期及潜在违约案例来看，危机的表象多种多样，除了资金周转困难带来直接的偿付危机；有的则是债务人控制人挪用公司资金投入股市炒股，有的是公司实际控制人陷入刑事调查和指控，也有的则更为隐蔽，债务人关联主体在境外受到他国政府的调查等等。这些危机虽然不一定直接表现为到期不付，但可能已经导致债务人违反融资文件的陈述、承诺条款，甚至通过交叉违约触发了违约事件或潜在违约事件。

本文旨在梳理危机处理的思路，通盘策划全面追索资产的策略，为贷款管理工作层面制定一份简介易行的“工作方案”，以便为后续的债务重组和清偿争取宝贵的时间，避免弯路：

一、梳理融资文件

As the Chinese economy enters the “new normal”, the Chinese government has been adjusting its industrial and credit-related policies and strengthening regulation of Chinese financial institutions. A large number of non-performing loans (NPLs) as well as actual loan defaults have started to surface. The risks associated with rising levels of NPLs require Chinese banks to enhance their ex ante and ex post credit risk management practices.

The Facts

Following a bankruptcy petition on 23 January 2007, Mr Eaitisham Ahmed had entered an IVA which was approved as a result of votes of family members who claimed to be creditors. The IVA was challenged and a bankruptcy order was made on 21 April 2009. David Ingram and Michaela Hall were appointed as Joint Trustees on 14 April 2010, following a trustee in bankruptcy initially appointed on or around the time of the bankruptcy order.

The Facts

Mr Tailby and Mr Courtman were appointed Administrators over three connected companies: TPS Investments (UK) Ltd; ABC Prop Co Holdings Ltd and CP Investment Holdings Limited. TPS was a property developer and owned a number of properties; two of these were transferred to ABC and one to CP.

It was first published by the Governance Institute of Australia.

The Agricultural Credits Act 1928 ("ACA 1928") enables a farmer to grant an Agricultural Charge to a bank over all his farming stock and other agricultural assets, but not the land he farms.

An Agricultural Charge can be a fixed charge, a floating charge or both. However, any assets obtained by the farmer after the creation of the Charge will only be subject to a floating charge. Only a registered deposit taking bank or the Bank of England can take an Agricultural Charge.

A floating charge is automatically converted to a fixed charge if: