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New York district court refuses to recognize hedge funds’ winding up proceedings in the Cayman Islands
2008-06-09

In a recent decision,1 Judge Sweet of the United States District Court for the Southern District of New York affirmed a bankruptcy court decision and refused to recognize under chapter 15 of the Bankruptcy Code either as “foreign main proceedings” or as “foreign nonmain proceedings” the well-publicized liquidations brought in the Grand Court of the Cayman Islands by two Bear Stearns hedge funds (the “Funds”).

Filed under:
Cayman Islands, USA, Capital Markets, Insolvency & Restructuring, Litigation, Private Client & Offshore Services, Paul, Weiss, Rifkind, Wharton & Garrison LLP, Debtor, Asset management, Hedge funds, Legal burden of proof, Liquidation, Broker-dealer, Comity, Title 11 of the US Code, Bear Stearns, United States bankruptcy court
Location:
Cayman Islands, USA
Firm:
Paul, Weiss, Rifkind, Wharton & Garrison LLP
View Original Article
Investment firm insolvency: protection for trustees
2008-10-24

In the current market turmoil, several banking and insurance names have already had to be rescued by government-brokered packages. It is therefore timely to review what rights institutional investors have in the event of counterparty insolvency. Unfortunately, the picture is complicated, not just because the question of how pension fund investors can get their money back may have an international dimension, but also because governments keep moving the goalposts on the availability and adequacy of compensation schemes.

Where does the claim arise?

Filed under:
United Kingdom, Employee Benefits & Pensions, Insolvency & Restructuring, Squire Patton Boggs, Asset management, Investment management, Investment funds, Default (finance), Annuity, Financial Services Compensation Scheme, Trustee
Location:
United Kingdom
Firm:
Squire Patton Boggs
View Original Article
The year in bankruptcy
2008-02-01

In a tumultuous year that is likely to be remembered for its extreme market volatility, skyrocketing commodity prices (e.g., crude oil hovering at $100 per barrel), a slumping housing market, the weakest U.S. dollar in decades versus major currencies, a ballooning trade deficit with significant overseas trading partners such as China, Japan, and the EU , and an unprecedented proliferation of giant private equity deals that quickly fizzled when the subprime mortgage meltdown made inexpensive corporate credit nearly impossible to come by, 2007 was anything but mundane.

Filed under:
USA, Insolvency & Restructuring, Jones Day, Public company, Bankruptcy, Asset management, Subprime lending, Mortgage loan, Liquidation, Default (finance), Mortgage-backed security, Derivatives market
Location:
USA
Firm:
Jones Day
View Original Article
资管新规:回购条款的法律风险及防范
2018-06-07

回购条款作为资管产品中常见的增信措施,资管新规对其有何影响?

资管新规之前,回购条款的效力得到法院普遍认可

回购条款本质上是一种逆向的、独立的交易行为,属于合同债权的范畴。其虽然具有一定的债权保障作用,但不构成债权担保的从属性,更不具有担保物权的优先受偿功能。因此,回购条款并非我国的法定担保形式。

资管新规之前,司法实践中,法院在考察当事人意思表示和内容的合法性基础上,一般会认可回购条款的合法有效性。

在“重庆国际信托股份有限公司与安徽三联实业发展有限公司等合同纠纷案”(〔2015〕渝高法民初字第00025号)中,法院认为,“《资产收益权转让及回购协议》系当事人的真实意思表示,不违反法律、行政法规的强制性规定,合法有效。结合信托公司提供的营业执照和金融许可证上载明的内容,信托公司签订的上述合同不违反金融监管部门核准的经营范围;且本案合同所涉的借款资金来源并不影响借款合同本身的效力。”

Filed under:
China, Insolvency & Restructuring, King & Wood Mallesons, Asset management
Authors:
Lei Jiping
Location:
China
Firm:
King & Wood Mallesons
View Original Article
Chapter 15 recognition: Fairfield Sentry Limited (in liquidation)
2010-10-29

As well as issuing claims in mistake and restitution in the BVI Commercial Court and the US State Supreme Court, the liquidators of Fairfield Sentry Limited (“the Fund”) also petitioned for and, on 22 July 2010 obtained, Chapter 15 recognition in the United States Bankruptcy Court for the Southern District of New York.

Filed under:
British Virgin Islands, USA, Insolvency & Restructuring, Litigation, Private Client & Offshore Services, Ogier, Debtor, Asset management, Investment management, Liquidation, Liquidator (law), Derivative suit, UNCITRAL, United States bankruptcy court
Location:
British Virgin Islands, USA
Firm:
Ogier
View Original Article
Bank's lack of diligence results in denial of late claim
2011-05-25

COMMODITY FUTURES TRADING COMMISSION v. LAKE SHORE ASSET MANAGEMENT LTD. (May 11, 2011)

Filed under:
USA, Banking, Insolvency & Restructuring, Litigation, Kelley Drye & Warren LLP, Share (finance), Shareholder, Fraud, Asset management, Default judgment, Commodity market, Pro rata, Commodity Futures Trading Commission (USA)
Location:
USA
Firm:
Kelley Drye & Warren LLP
View Original Article
Losing Your Marbles: A Sensible Interpretation of Section 316 of the Trust Indenture Act
2017-01-27

The U.S. Court of Appeals for the Second Circuit issued its ruling in Marblegate Asset Management, LLC v. Education Management Corp. that provided much needed clarity to creditors and issuers involved in out-of-court restructurings affecting noteholders. The issue for the court was whether Education Management Corp. (“EDMC”) violated the Trust Indenture Act (the “TIA”) when it implemented a restructuring that impaired the rights of one of its unsecured noteholders, Marblegate Asset Management, LLC (the “Noteholder”).

Filed under:
USA, Insolvency & Restructuring, Litigation, Cadwalader Wickersham & Taft LLP, Unsecured debt, Asset management, Secured loan, Second Circuit
Location:
USA
Firm:
Cadwalader Wickersham & Taft LLP
View Original Article
Obtaining foreign main proceeding status under chapter 15 becomes increasingly difficult
2008-04-25

As recently reported in our Fall 2007 issue, Judge Lifland’s decision in In re Bear Stearns High-Grade Structured Credit Strategies Master Fund, Ltd.,1 limited the ability of offshore funds in financial distress to utilize chapter 15 of the Bankruptcy Code.

Filed under:
USA, Insolvency & Restructuring, Litigation, Private Client & Offshore Services, Cadwalader Wickersham & Taft LLP, Debtor, Asset management, Liquidation, Title 11 of the US Code, Bear Stearns, United States bankruptcy court
Location:
USA
Firm:
Cadwalader Wickersham & Taft LLP
View Original Article
Court restricts ability of offshore funds to access chapter 15 of the Bankruptcy Code
2007-10-25

In Bear Stearns High-Grade Structured Credit Strategies Master Fund, Ltd.,1 the United States Bankruptcy Court for the Southern District of New York refused to allow the foreign representatives of two Bear Stearns funds2 to institute ancillary proceedings under new chapter 15 of the United States Bankruptcy Code. There, Judge Lifland held that, even though the Funds were in liquidation proceedings in the Cayman Islands, those proceedings constituted neither “foreign main” nor “foreign non-main” proceedings for purposes of the U.S.

Filed under:
Cayman Islands, USA, Insolvency & Restructuring, Litigation, Private Client & Offshore Services, Cadwalader Wickersham & Taft LLP, Bankruptcy, Debtor, Injunction, Asset management, Margin (finance), Subprime lending, Liquidation, Liquidator (law), Title 11 of the US Code, Bear Stearns, United States bankruptcy court
Location:
Cayman Islands, USA
Firm:
Cadwalader Wickersham & Taft LLP
View Original Article
District court affirms decision to deny Cayman Islands hedge funds access to U.S. bankruptcy court under Chapter 15
2008-06-05

The United States District Court for the Southern District of New York recently affirmed a bankruptcy court’s denial of Chapter 15 protection for the U.S. assets of two Cayman Islands hedge funds (the “Funds”) (previously reported in SRZ’s Sept. 19, 2007, Alert, “Cayman Hedge Funds Liquidators’ Request for Chapter 15 Protection Denied by Bankruptcy Court”). See Civ. Case No. 07-8730 (S.D.N.Y. May 27, 2008) (the “Decision”).

Filed under:
Cayman Islands, USA, Capital Markets, Insolvency & Restructuring, Litigation, Private Client & Offshore Services, Schulte Roth & Zabel LLP, Debtor, Injunction, Asset management, Hedge funds, Foreclosure, Liquidation, Liquidator (law), US Code, United States bankruptcy court, US District Court for SDNY
Location:
Cayman Islands, USA
Firm:
Schulte Roth & Zabel LLP
View Original Article

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