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    UK Supreme Court confirms the validity of the 'flip' clause
    2011-08-04

    In its ruling on Wednesday 27 July in the matter of Belmont Park Investments PTY Ltd v BNY Corporate Trustee Services Lte & Anor [2011] UKSC 38 the Supreme Court of the United Kingdom has dismissed the appeal by Lehman Brothers Special Finance Inc. ("LSF") relating to the validity of an alleged anti-deprivation provision known as a 'flip' provision which, has the effect of altering the payment priority order as a result of a bankruptcy of the relevant swap counterparty, in this case Lehman Brothers.

    Filed under:
    USA, Derivatives, Insolvency & Restructuring, Litigation, Orrick, Herrington & Sutcliffe LLP, Contractual term, Bankruptcy, Breach of contract, Swap (finance), Good faith, Default (finance), Lehman Brothers, Credit rating agency, Supreme Court of the United States, UK Supreme Court
    Authors:
    Martin Bartlam
    Location:
    USA
    Firm:
    Orrick, Herrington & Sutcliffe LLP
    What is a debt restructuring?
    2008-12-12

    What is a debt restructuring?

    The aim of any restructuring (also sometimes called a workout) is to rearrange the debtor’s financial commitments so that it is able to service its restructured debts and survive as a going concern. It is important to note that this is a consensual process and is not undertaken under the supervision of a court or other supervisory body - therefore, it is important the all creditors are involved.  

    If it’s voluntary, how does it work?

    Filed under:
    Asia-Pacific, Insolvency & Restructuring, Norton Rose Fulbright, Shareholder, Debtor, Breach of contract, Waiver, Interest, Debt, Cashflow, Default (finance), Debt restructuring, Convertible bonds
    Location:
    Asia-Pacific
    Firm:
    Norton Rose Fulbright
    Ninth CIRC. Bankruptcy appellate panel tackles property and creditor's reach in 'juarez'
    2020-06-26

    InIn re Juarez, 603 B.R. 610 (9th Cir. BAP 2019), the Bankruptcy Appellate Panel of the U.S. Court of Appeals for the Ninth Circuit addressed a question of first impression in the circuit with respect to property that is exempt from creditor reach: it adopted the view that, under the "new value exception" to the "absolute priority rule," an individual Chapter 11 debtor intending to retain such property need not make a "new value" contribution covering the value of the exemption.

    Background

    Filed under:
    USA, Arizona, Insolvency & Restructuring, Litigation, Duane Morris LLP, Breach of contract, Fraud, Constructive trust, Ninth Circuit, United States bankruptcy court, U.S. Court of Appeals
    Authors:
    Rudolph J. Di Massa, Jr. , Malcolm Bates
    Location:
    USA
    Firm:
    Duane Morris LLP
    ASIC releases guide to directors to prevent insolvent trading
    2010-07-29

    On 24 November 2009, ASIC released Consultation Paper 124 which provides guidance for directors on their duty to prevent insolvent trading which is imposed by section 588G of the Corporations Act 2001.

    The economic climate over the past two years has seen a growing number of corporate insolvencies. There is also evidence that directors, and particularly directors of small to medium size enterprises, do not fully understand their duty to prevent insolvent trading.

    Filed under:
    Australia, Company & Commercial, Insolvency & Restructuring, Norton Rose Fulbright, Breach of contract, Public consultations, Board of directors, Economy, Australian Securities and Investments Commission, Corporations Act 2001 (Australia)
    Location:
    Australia
    Firm:
    Norton Rose Fulbright
    ASIC releases regulatory guide for directors on the duty to prevent insolvent trading
    2010-08-09

    Every director of an Australian company is under a legal duty to prevent the company incurring a debt when the company is insolvent (or where that debt will cause the company to become insolvent).

    The Australian Securities and Investments Commission's (ASIC) new Regulatory Guide sets out four key principles which directors should follow to meet their obligation to prevent insolvent trading.

    The Regulatory Guide also sets out ASIC's approach to assessing whether a director has breached their duty.

    Background

    Filed under:
    Australia, Company & Commercial, Insolvency & Restructuring, Hall & Wilcox, Security (finance), Breach of contract, Board of directors, Accounting, Debt, Balance sheet, Cashflow, Liquidator (law), European Commission, Australian Securities and Investments Commission, The Australian, Constitutional amendment, Corporations Act 2001 (Australia)
    Authors:
    Tony Macvean , James Morvell
    Location:
    Australia
    Firm:
    Hall & Wilcox
    High Court warns: receivers should not give 'usual undertaking as to damages' lightly
    2010-03-18

    Introduction

    The High Court recently considered, in European Bank Limited v Robb Evans of Robb Evans & Associates, the nature and extent of a "usual undertaking as to damages" given by a receiver in accordance with Part 28, rule 7(2) of the Supreme Court Rules 1970 (NSW). In doing so, it overturned the decision of the NSW Court of Appeal to reinstate the trial judge's finding that the receiver was liable for substantial losses suffered by a third party deprived of the funds which were at the heart of the dispute.

    Background

    Filed under:
    Australia, Insolvency & Restructuring, Litigation, Norton Rose Fulbright, Injunction, Breach of contract, Citibank, Court of Appeal of England & Wales, High Court of Justice (England & Wales), High Court of Australia, New South Wales Court of Appeal
    Authors:
    Mitchell Mathas , John Holmes , Nino Di Bartolomeo
    Location:
    Australia
    Firm:
    Norton Rose Fulbright
    Solicitors and advisors to face liability for directors’ breach
    2009-11-13

    Introduction

    The New South Wales Supreme Court has found a solicitor liable for facilitating unlawful ‘phoenix’ activity.1 Phoenix activity consists of transferring business assets out of an old debt-laden company (which subsequently goes into liquidation) to a new debt free company. The new company carries on the business of the old company; but the assets are put beyond the reach of the creditors of the old company.

    Filed under:
    Australia, Insolvency & Restructuring, Litigation, Herbert Smith Freehills LLP, Share (finance), Breach of contract, Dividends, Solicitor, Debt, Liability (financial accounting), Liquidation, Good faith, Unsecured creditor, Causality, Australian Taxation Office, Corporations Act 2001 (Australia)
    Authors:
    Paul Wenk
    Location:
    Australia
    Firm:
    Herbert Smith Freehills LLP
    Continuity of undertakings: a new law to replace the law on composition
    2008-12-01

    On 6 November 2008, the Belgian House of Representatives adopted a bill on the continuity of companies. Although the Senate has exercised its right to examine the bill and may propose amendments until 26 January 2009, we thought it useful to go ahead and address this new bill, which will replace the Act of 17 July 1997 on composition with creditors (Wet op het gerechtelijk akkoord/Loi sur le concordat judiciaire).

    Filed under:
    Belgium, Insolvency & Restructuring, NautaDutilh, Bankruptcy, Legal personality, Debtor, Breach of contract, Interest, Employment contract, Moratorium, Bad faith
    Location:
    Belgium
    Firm:
    NautaDutilh
    The blame game: obtaining financial relief against directors and officers in insolvencies
    2011-08-04

    By virtue of his appointment, a liquidator steps into the shoes of the company and so the usual contractual, tortious and equitable remedies are actionable by the liquidator, acting in the name of the company.  Claims are most likely to be based on the following:

    Filed under:
    British Virgin Islands, Insolvency & Restructuring, Litigation, Harneys, Breach of contract, Fraud, Fiduciary, Contributory negligence, Liquidation, Account of profits, Liquidator (law), Professional liability insurance
    Location:
    British Virgin Islands
    Firm:
    Harneys
    General Counsel Update - February 2017
    2017-03-01

    When we began analysing in depth the possibility of Britain exiting the European Union, 18 months prior to the June 2016 referendum, the HERBERT businessSMITH FREEHILLS consensus w07as very muchSECTION TITLE that Brexit was a remote prospect that either would never happen or not matter.

    Fast forward just over two years and the reality could not be more different. In this updated edition of our Brexit legal guide, we take stock of the present situation, summarising the key developments since last year's vote and what is to be expected in the months ahead. 10 33 99

    Filed under:
    Australia, China, European Union, Hong Kong, Indonesia, Singapore, United Arab Emirates, United Kingdom, Arbitration & ADR, Banking, Capital Markets, Company & Commercial, Competition & Antitrust, Employment & Labor, Energy & Natural Resources, Environment & Climate Change, Insolvency & Restructuring, Insurance, IT & Data Protection, Law Department Management, Planning, Public, Tax, Telecoms, Herbert Smith Freehills LLP, Brexit, Breach of contract, Reinsurance, Prudential Regulatory Authority (UK), General counsel, Duty of care, Defined benefit pension plan, Contract for difference, European Commission, Securities and Futures Commission (Hong Kong), Fair Work Commission (Australia)
    Location:
    Australia, China, European Union, Hong Kong, Indonesia, Singapore, United Arab Emirates, United Kingdom
    Firm:
    Herbert Smith Freehills LLP

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