The English Court of Appeal has clarified the interpretation of two aspects of s.423 of the Insolvency Act 1986, the legislation which provides a mechanism for the avoidance of transactions which have been made for the purpose of defrauding creditors:Invest Bank PSC v Ahmad Mohammad El-Husseini [2023] EWCA Civ 555.

Five years after the collapse of construction company giant, Carillion PLC, its former Chief Financial Officer (CFO) Zafar Khan has been disqualified from acting as a company director, or being concerned in its management, for 11 years. This is just 4 years short of the maximum period of 15 years, reflecting the seriousness of the allegations against him. The Insolvency Service accepted an undertaking from Mr Khan in settlement of its action against him.

Two recent cases, Re Guangdong Overseas Construction Corporation [2023] HKCFI 1340 (the “GOCC Case“) and Re Trinity International Brands Limited [2023] HKCFI 1581 (the “Trinity Case“), reaffirm

Entre otras disposiciones, el RDL 5/2023 contiene una serie de medidas para la transposición de la Directiva (UE) 2019/2121 del Parlamento Europeo y del Consejo, de 27 de noviembre de 2019, en lo que atañe a las transformaciones, fusiones y escisiones transfronterizas intracomunitarias, estructurándose en cuatro títulos, que suponen una nueva regulación de las modificaciones estructurales de las sociedades mercantiles.

The Court of Appeal has set aside a freezing order obtained by a provisional liquidator within winding up proceedings, on the basis that the cross-undertaking in damages given by him was inadequate because it was limited to the amount recovered for the estate. The liquidator had not discharged the burden of showing good reason to depart from the “default position” that a cross-undertaking should be unlimited in amount: Hunt v Ubhi [2023] EWCA Civ 417.

In Simplicity & Vogue Retailing (HK) Co., Limited [2023] HKCFI 1443, the Hong Kong Companies Court (the “Court“) made a winding up order against the Company on the basis that it failed to pay security in time. In considering the Company’s opposition grounds, the Court commented that it retains discretion to wind up a company in cases involving an arbitration clause.

What makes a charge a fixed or floating security and why is this distinction important? The characteristics of a floating charge are long-established, but how does a lender ensure that valuable capital assets, i.e. investment properties, stocks, and bonds, of a borrowing company, are subject to valid fixed charge security?

The High Court has held that certain assets sold by a company around the time of its administration were subject to a fixed charge rather than a floating charge and as such, the sale proceeds were not to be distributed to preferential creditors or unsecured creditors: Avanti Communications Ltd, Re [2023] EWHC 940 (Ch).

Two recent judgments from different Australian courts have considered circumstances in which insolvency disputes can (or cannot) be arbitrated in accordance with pre-existing arbitration agreements. In particular, the decisions address the following two key issues:

• when certain insolvency claims can be arbitrated; and
• when a third party can participate in arbitral proceedings either claiming or defending ‘through or under’ a party to the arbitration agreement.

Key takeaways

On 21 April 2023, the Hong Kong Court of Appeal (CA) released its judgment Power Securities Co Ltd v Sin Kwok Lam [2023] HKCA 594, which provided certainty on the application of the bar against reflective loss for shareholders.

Background