In ancient Greek folklore a phoenix was a bird which cyclically regenerated or was otherwise reborn again. It’s a nice idea and most of you will be forgiven for thinking that the phenomenon could never happen. However, if we substitute for a “bird” a “limited company” then the concept is almost one of legal abuse. This is because a phoenix company, in Scotland at least, is one which has ceased to trade or may have been struck off the company register due to, for example, a failure to lodge accounts. There will have been no formal winding up process.

The Privy Council's recent judgment in Weavering^[1]upheld the decisions of the Cayman Islands Grand Court and Court of Appeal that payments made to redeemed investors immediately prior to the fund's liquidation were preference payments under section 145(1) of the Companies Law (2018 Revision) (Law), and must be repaid.

RE Z III Trust [2019] JRC 069

The Royal Court of Jersey has determined that the preferred course to follow when winding up an insolvent trust is for the existing trustee to apply a formal winding up procedure under the Court's supervision. Key features of this procedure would be (i) a moratorium on legal claims; (ii) the trustee should advertise for claims on the trust assets; and (iii) the trustee should require creditors to prove their claims before distributing the assets.

The Z Trusts litigation

With two decisions (No. 1895/2018 and No. 1896/2018), both filed on 25 January 2018, the Court of Cassation reached opposite conclusions in the two different situations

The case

The Constitutional Court (6 December 2017) confirmed that Art. 147, para. 5, of the Italian Bankruptcy Law does not violate the Constitution as long as it is interpreted in a broad sense

The case

With the decision No. 1195 of 18 January 2018, the Court of Cassation ruled on the powers of the extraordinary commissioner to require performance of pending contracts and on the treatment of the relevant claims of the suppliers

The case

The Court of Cassation with a decision of 25 September 2017, No. 22274 confirms that Art. 74 of the Italian Bankruptcy Law provides a special rule, which does not apply to cases to which it is not explicitly extended

The case

With the decision No. 1649 of 19 September 2017 the Court of Appeals of Catania followed the interpretation according to which a spin-off is not subject to the avoiding powers of a bankruptcy receiver

The case

The Supreme Court of Cassation (19 October 2017, No. 24682) discerns the respective scope of application of the criteria for the liquidation of compensation to the lawyer in case there was no specific agreement between the parties

The case

The case

The receiver of a bankrupt joint-stock company sued its directors before the Court of Rome, in order to ascertain their liability, pursuant to Article 146 of Bankruptcy Law.

More precisely, the bankruptcy was considered the result of a transaction particularly burdensome with respect to the company’s share capital and unjustified in relation to the economic value of the block of shares acquired.