In January 2018, the Aviation Working Group (“AWG”)1 as part of its review of closing opinion practice, released a revised Form of Cape Town Convention Closing Opinion. The aim of the review was to provide further guidance and consistency in the approach legal practitioners adopt in respect of Cape Town and the State of Registry Jurisdiction.
The AWG was founded in 1994, with stated aims of contributing to the development and acceptance of policies and laws that:
facilitate advanced international aviation financing and leasing, and
In a significant decision for the insurance industry, the Federal Court of Australia has granted leave to shareholders to bring a direct action against a company’s insurers where the (insured) company was in liquidation. This is one of the earliest cases to make use of the new Civil Liability (Third Party Claims Against Insurers) Act 2017 (NSW) (Third Party Claim Act), and provides some useful guidance for the industry on how this new legislation will be applied.
The decision impacts plaintiff lawyers, policyholders and insurers alike. Importantly:
On 22 January 2018, Statistics South Africa released a report for the period January to December 2017 on insolvencies in South Africa. This report reveals a general decrease in liquidations.
What is the “fatal flaw” in our law? The Insolvency Act, 1936 (Insolvency Act) has always made provision for the holder of a pledge and cession in security over “marketable securities” (Secured Party), upon the insolvency of the security provider (Security Provider), to immediately realise those marketable securities through or to a stockbroker on a recognised stock exchange. However, in terms of s83(10) of the Insolvency Act (as it currently stands), once the pledged securities have been so realised they must be paid over to the liquidator.
Certain debtors have become masters of delay and indeed professional insolvents, leaving creditors and failed businesses in their wake.
The legal moratorium is a protective mechanism inherent in business rescue proceedings. Another safety net available to debtors is the possibility of rehabilitation of insolvent estates. Debtors use these and other methods to take advantage of the system and their creditors, delaying the winding up process and impeding creditors’ recovery.
In Ex Parte Nell and Others NO 2014 (6) SA 545 (GP) (28 July 2014), the board of a company passed a resolution placing it in business rescue in accordance with s129 of the Companies Act, No 71 of 2008 (Companies Act). In terms of this section, a financially distressed company may, without any prior judicial oversight or consultation with its creditors, achieve a general moratorium against legal proceedings.
On July 19 2017, the National Treasury published the Draft Taxation Laws Amendment Bill 2017. The bill proposes to clarify the tax implications that arise when a person assumes contingent liabilities under the corporate reorganisation rules contained in Sections 41 to 47 of the Income Tax Act (58/1962).
A Melomed Finance (Pty) Ltd (In Liquidation) v Harris Jeffrey (SGHC Case no: 2016/A5028) (Judgment handed down 23 June 2017)
The South Gauteng High Court, sitting as a court of appeal, recently handed down a judgment to the effect that a verbal acknowledgement of debt when made at an enquiry held into the affairs of a company, in terms of s417 and s418 of the Companies Act, No 61 of 1973 (s417 enquiry), can be used as evidence in subsequent civil litigation to recover the amount so acknowledged.
上一篇我们谈到诉讼主体的确定问题，本文将从担保的视角对债券持有人的权利救济予以分析。
保证人单方出具《保证函》的效力
Since 1956, legislation has required suretyship agreements to be embodied in a written document. A suretyship agreement involves three parties; simplistically if A does not pay B, then C will. C will step into the shoes of A and perform A’s obligations for them.