在与向英国供货的国际公司合作的过程中，我们发现了一些常见问题。在上一篇文章中，我们研究了客户可能面临的破产程序类型。在“五行”系列第四篇文章中，我们围绕“火”元素来说明破产执业者在进入破产程序时拥有的重大权力：调查不当行为，并将资产收回统一偿还债权人。

火：破产执业者对债权人欺诈性交易的重大权力

破产执业者(不论是清算人或管理人)可以向法院申请撤销在公司进入破产程序前进行的特定交易。通过这种方式，可以收回资产或资金，统一向债权人偿付。下列情形属于“先前的”或“可审查”的交易：

1. 公司的资产或财产被低价出售；

2. 公司在进入破产程序前给予某债权人优先权，使其处于比其他债权人更有利的地位；

3. 公司订立了敲诈性信贷交易（交易条款有严重的敲诈性）；

4. 公司设立了无效浮动抵押，即为已发放的贷款或已提供的货物及服务的成本提供担保；

5. 公司订立的交易具有欺诈债权人的明确目的，即：使公司的资产脱离破产执业者和债权人的控制范围。

不同类型的可审查交易有不同的时间要求。例如，低价出售必须发生在公司进入破产程序前的两年内。

Originally published on LexisLibrary and LexisPSL

Restructuring & Insolvency analysis: Thomas Cook is the third large company to be wound up by the courts in 18 months, following British Steel and Carillion in 2018. Professor Andrew Keay, barrister at Kings Chambers, 9 Stone Buildings and Lincoln’s Inn and Professor of corporate and commercial Law at the University of Leeds, discusses why it entered liquidation rather than administration and how it will impact employees and customers of Thomas Cook.

Original news

Retail Company Voluntary Arrangements (CVAs) are becoming an increasingly popular means of minimising liabilities and creating breathing space for tenants during a difficult trading environment on the High Street. Where does this leave landlords?

Originally published on LexisLibrary and LexisPSL

Revisiting over 150 years of case law, the High Court has resolved a question on which both the courts and textbooks had given conflicting answers: is a director's liability for payment of a dividend which is unlawful as a result of incorrect accounts fault-based or strict?

In Skandinaviska Enskilda Banken AB v Conway & another [2019] UKPC 36, the Privy Council upheld the decision of the Court of Appeal of the Cayman Islands that the appellant bank, SEB, was required to repay redemption payments held to be preferences notwithstanding that it had received the funds in the capacity of nominee, and had already distributed the funds to the beneficiaries without any ability to recover them.

Facts

In this week's update: directors did not need to consider the rights of creditors when declaring a dividend as the company was not insolvent, the Law Commission is seeking views on the law of intermediated securities, polling information can be inside information and a couple of other items.

Court considers whether demerger by dividend was valid (part 4)

In Oversea-Chinese Banking Corporation Limited v ING Bank NV [2019] EWHC 676 (Comm), Moulder J rejected a purchaser’s claim that their damages for breach of warranty should be calculated by reference to a hypothetical indemnity which they would have negotiated with the seller had the true position been disclosed prior to entering into the agreement.

The Government’s final report on how to deal with insolvent airlines has been criticised by major UK carriers for its headline-grabbing suggestion of a new Flight Protection Scheme which would see a levy of about 50p put on customer fares to cover the costs of any future repatriation exercise. But the implications of the report are potentially far more significant and wide-ranging for all stakeholders.

On closer analysis, the report could see changes in:

The lender's dilemma

Lenders who take security over shares in an English company have to decide whether to take either:

• a legal mortgage by becoming registered owner of the shares
• an equitable mortgage or charge with the chargor remaining the registered owner.

A legal mortgage gives the lender the right to vote subject to the terms of the mortgage document and prevents the chargor from disposing of legal title to the shares to a third party, as the lender is the registered owner of the shares.