On 1 July 2021, the Australian Financial Security Authority (AFSA) released its Personal Insolvency Compliance Program 2021–22, Regulatory Charter and Regulatory Actions Cooperation and Support Policy. These documents underpin AFSA’s regulatory priorities and enforcement obligations for the forthcoming year, particularly in relation to personal insolvency and the Personal Property Securities Register (PPSR).
Personal Insolvency Compliance Program 2021–22
Distressed transactions in bankruptcy court have become big business. Sales under Section 363 of the bankruptcy code provide predictability and reliability (in the form of a court order delivering “free and clear” assets) under even the most turbulent of circumstances. Commonly known simply as “363 sales,” these transactions can provide an opportunistic purchaser with significant upside under the right circumstances. But the truly opportunistic buyer will need to buckle up and be prepared to move with lightning speed in a highly competitive and transparent forum.
In Costa Rica, under the principle of autonomy of will and free contracting, the possibility that all private parties sign contracts under foreign law if they do not contravene provisions of local public order exists.
This principle, combined with a fairly liberal regulatory framework for private parties, allowed that until recently, models of financing contracts governed by foreign law could be adopted, without major changes, by local debtors.
Introduction
Cryptocurrency has become a major talking point and an accessible investment option for retail investors. As it has become mainstream, and the ownership of cryptocurrency has become easier and more user friendly, the value associated with most cryptocurrencies including Bitcoin, Ethereum and Nano has seen huge gains.
In Re Freeman FinTech Corporation Ltd [2021] HKCFI 310, the Hong Kong court sanctioned a scheme of arrangement in respect of a debt restructuring in which the governing law of part of the debt was not Hong Kong law and the creditor to whom this debt was owed did not submit to the jurisdiction of the Hong Kong court. In this article, we discuss the background and rationale for the decision and provide some observations on what the decision may mean for future debt restructurings.
Includes developments in relation to: ESG; CRR; COVID-19; IFPR; Basel III; Securitisation Regulation; LIBOR; and EMIR.
Click on the headings below to access each section:
HEADLINES
So far this year, fewer European and American businesses have encountered financial distress that required either bankruptcy or restructuring procedures than in the same period in 2020. This decline occurred despite the ongoing economic impact of COVID-19.
Across the world, government support has kept insolvency rates down but as jurisdictions look to loosen restrictions and ease back into some kind of normality, governments can't foot the bill forever.
As financial support is withdrawn, restructuring, insolvency and corporate recovery practitioners will likely see a spike in activity, and offshore firms are braced for an increase in demand from clients. After that, there'll likely be lender enforcement resulting in formal insolvencies by the end of the year and into next year.
Last year I published an article about “COVID-19’s Impact on Chapter 11 Cases”, suggesting its impact for debtors, secured lenders, unsecured creditors, and equity interest holders may be to turn the Chapter 11 process into true reorganizations of companies, rather than mostly asset sales of the Debtor’s assets as has been the situation for many years.
It's probably becoming a cliché to say that the future is already here, but it's hard to resist. New technology increasingly pervades every professional sector, including that of insolvency.
In a recent report by the Law Society on developing technology, the Chancellor of the High Court, Sir Geoffrey Vos, commented that: "Lawyers face a steep learning curve. They will need to become familiar with […] cryptoassets – conceptually and functionally."