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

Re: Guangdong Overseas Construction Corporation () (in liquidation) (date of decision: 17 May 2023)

Introduction

As the economic outlook remains uncertain, businesses of all sizes and their boards are experiencing mounting pressure from various sources. In particular, directors of companies in financial difficulty face a number of challenges. Primarily, they must decide what they can do to keep the company in business without running the risk of committing an offence or incurring personal liability, and at what stage they must stop trading.

This article outlines some key issues and strategies that directors should consider when times are tough.

The High Court recently issued its ruling in the matter of Re Avanti Communications Limited (in administration). It is the first major case since the pivotal 2005 House of Lords decision of Re Spectrum Plus  to examine the characteristics of fixed and floating charges.

Key points

Re: GUY KWOK-HUNG LAM [2023] HKCFA 9 (date of decision: 4 May 2023)

Introduction

In the recent decision in Re Guy Kwok-Hung Lam, the Hong Kong Court of Final Appeal set out the proper approach to a bankruptcy petition where the parties had agreed to submit to the exclusive jurisdiction of a specified foreign court.

In the tenth edition of Going concerns, Stephenson Harwood’s restructuring and insolvency team covers the innovative attempt by a distressed company to shut out low-valued creditors in a scheme of arrangement, the utility of the Singapore recognition of foreign insolvencies regime to assist international liquidations, and the factors which the Singapore Courts will consider when deciding whether to stay a bankruptcy application. It has been a pleasure preparing these articles over the past five years and a big thank you to our readers!

Content

In the current times of financial stress, a borrower seeking to renegotiate or refinance existing financing arrangements may be asked by its lender to enhance or refresh its security package through the grant of a new floating charge.

The question of whether a floating charge can be avoided due to section 245 of the Insolvency Act 1986 ("IA 1986") can arise in such a context.

Void floating charges under section 245 of the IA 1986

This article will discuss whether or not a winding-up petition or bankruptcy petition can be based upon a liquidated amount of crypto which is due and payable by one party to another (a crypto-debt).

An example of such a case could be where party A agrees to transfer 100 widgets to party B in exchange for five bitcoin. Assume party A delivers the widgets, and party B accepts receipt and raises no issue with the widgets, and does not dispute their liability to transfer five bitcoin to party B.

Introduction

There is a worrying trend in the construction industry: contractor insolvencies are on the rise.

According to a release from The Insolvency Service, the construction industry accounted for 3,213 insolvency cases in the 12 months leading up to April 2022. This equates to almost a fifth (19%) of the overall cases of insolvency and, more worryingly, these numbers are still growing. These insolvencies have occurred throughout the market but have particularly affected smaller and mid-tier contractors.

When an Event of Default is "continuing" is not defined or addressed in the ISDA Master Agreement. Until now it does not appear to have been expressly considered in case law either.