簡介
在最近英国最高法院的一项判决中，资不抵债或接近资不抵债的公司的董事有责任考虑债权人的利益。虽然 BTI 2014 LLC v Sequana SA [2022] UKSC 25 涉及英国公司法，但它将对理解英联邦地区清盘情况下的董事职责产生深远影响，尤其是在离岸司法管辖区。
Sequana
普通法和 2006 年《公司法》均规定公司董事有义务以诚信行事，以促进公司的成功。传统观点认为，公司利益等同于公司股东的利益。近几十年来，法律开始承认，当公司濒临破产或资不抵债时，公司债权人的利益可能会受到公司管理层的影响。因此，法律开始要求董事在破产情况下履行对公司的信托义务时考虑债权人的利益。这条被称为 West Mercia 规则（源自 West Mercia Safetywear Ltd (in liq) v Dodd [1988] BCLC 250）的规则从未在案例中得到一致解释，而法院使用的语言经常混淆规则的性质及其产生的确切情况。
There has been no shortage of distressed airlines over the last 2.5 years as the COVID-19 pandemic and its economic reverberations wreaked havoc across the aviation sector and travel industry alike. Virgin Atlantic Airlines, Norwegian Air, Garuda, Malaysia Airlines (its leasing wing MAB Leasing Limited), AirAsia X and SAS are just some of the airlines to have gone through, or are in the process of, debt restructurings or deployment of asset and liability management strategies.
A case study of what to look out for when a tenant or its guarantor is looking like it is heading for financial difficulties.
As a prudent and prepared landlord, it's always sensible to assess what potential remedies you might have should a tenant (or its guarantor) become insolvent or enter into some form of insolvency procedure. In this bulletin, we look at a short hypothetical case study and identify some of the key issues that landlords will need to assess in such circumstances.
1. The case study scenario
The case study facts are as follows:
This is an important update in the Australian corporate and insolvency law context because, in BTI 2014 LLC v Sequana SA and others [2022] UKSC 25, the UK Supreme Court (being the UK’s highest court) confirmed the existence of a duty owed by directors to creditors in certain circumstances (creditor duty). Under the common law and equity (together, general law), there is a gateway to applicability of the creditor duty in Australia.
A much-anticipated UK decision confirms directors' obligations to creditors, but changes little in practice
Directors of a company are subject to certain duties under the Companies Act 2006. These duties are of obvious importance throughout their service as a director but some of them become particularly important during the period leading up to the insolvency of the company.
Common Starting Points
- Failing UK business.
- Proposed withdrawal from UK market following unsuccessful operations of an international group.
- Proposed solvent restructure involving corporates incorporated in the UK.
Common Questions Raised by Corporations Facing These Difficulties
In a corporate world where the capital structures of companies are becoming increasingly complex, schemes of arrangements under the Companies Act 2006 have established themselves as the restructuring procedure of choice for many distressed companies. This popularity is evidenced by the fact that schemes of arrangement have been increasingly used by overseas companies wishing to restructure their debts under the flexibility offered by English law.
DECISION OF THE GENERAL DIRECTORATE ON REGISTRIES AND NOTARIAL ACTIVITIES DATED OCTOBER 6, 2015: NO PUBLIC DEED REQUIREMENT FOR REGISTERING PROPERTY JUDICIALLY AWARDED IN AN INSOLVENCY PROCEEDING
It is not surprising that within an economic outlook which seems permanently set to "gloomy" many companies are having to think about reorganising their operations or restructuring their holding structures This article highlights some of the tax and other considerations which must be borne in mind when considering such reorganisations or restructurings with reference to some recent (and less recent) cases and changes in the law and points which have come to the fore in the current climate.
Recapitalisations