In the context of a trade finance dispute, the High Court has considered the contractual interpretation of an irrevocable letter of credit incorporating the commonly used code in the Uniform Customs and Practice for Documentary Credits 600 (UCP 600), published by the International Chamber of Commerce (ICC). In particular, the court held that the issuer’s interpretation of the letter of credit would, in practice, render the instrument revocable, which was inconsistent with the UCP and therefore not the proper construction.

Bankruptcy is a formal process geared toward preserving stakeholder value. Often, the proceedings include negotiations between stakeholders that are arduous, time-consuming and expensive. Positioning the company for healthy and sustainable growth is often viewed as a post- emergence priority, as companies naturally prioritize the near-term financial realities threatening their very survival.

Setting aside a transaction on the basis that it was an extortionate credit transaction under the Insolvency Act 1986 (IA 1986 or the “Act”) is difficult. A bargain may be hard or even unreasonable, but that does not make it extortionate. The most important term to any credit transaction is usually the interest rate and that is most likely to be subject to scrutiny when considering whether or not a credit transaction contained grossly exorbitant terms.

In a sudden and stunning collapse, FTX, the world’s second largest cryptocurrency exchange, run by 30-year-old Sam Bankman-Fried along with more than 130 entities affiliated with FTX, filed for Chapter 11 bankruptcy protection in Delaware on Friday.[1] Separately, the Securities Commission of the Bahamas appointed a Bahamas-based provisional liquidator for the controlling FTX entity and froze its assets along with

A common yet contentious liability management strategy is an “uptier” transaction, where lenders holding a majority of loans or notes under a financing agreement seek to elevate or “roll-up” the priority of their debt above the previously pari passu debt held by the non-participating minority lenders. In a recent decision in the Boardriders case, the minority lenders defeated a motion to dismiss various claims challenging an uptier transaction.

Cryptocurrency exchange FTX has filed for bankruptcy in the USA after the proposed bail-out by rival exchange, Binance, fell through earlier this week.

The news cycle is awash with reports of the insolvency of the various entities which operated the ‘FTX’ group of exchanges. That includes two Australian entities, FTX Express Pty Ltd and FTX Australia Pty Ltd, both of which appointed KordaMentha voluntary administrators yesterday, 11 November 2022.

As discussed in previous installments of this White Paper series, the Lummis-Gillibrand Responsible Financial Innovation Act (the “Bill”)¹ proposes a comprehensive statutory and regulatory framework in an effort to bring stability to the digital asset market. One area of proposed change relates to how digital assets and digital asset exchanges would be treated in bankruptcy. If enacted, the Bill would significantly alter the status quo from a bankruptcy perspective

OVERVIEW OF DIGITAL ASSETS IN BANKRUPTCY

FTX has warned its investors, customers and the crypto-world that they may have to file for bankruptcy protection without rescue financing to address its immediate liquidity crisis. Unlike the bankruptcy cases of Celsius and Voyager, FTX’s case, should it file, will likely involve many institutional investors with secured and unsecured claims.

Are customers’ digital assets held by exchange platforms in so-called “Custodial” and “Withhold” accounts property of the bankruptcy estate? This may be coined the golden question in the recent crypto bankruptcy chronicles, and at a status conference held Oct. 7, 2022, Bankruptcy Judge Martin Glenn of the Southern District of New York scheduled Dec. 7 and Dec. 8 as tentative dates to hear oral arguments on the issue.