APAC and Africa are diverse and multifaceted regions. APAC is set to contribute 70% of global growth whilst Africa is showing remarkable resilience in many sectors. We’ll learn from our members what this means for those looking to do business in these regions.
APAC
As the economic outlook remains uncertain, businesses of all sizes and their boards are experiencing mounting pressure from various sources. In particular, directors of companies in financial difficulty face a number of challenges. Primarily, they must decide what they can do to keep the company in business without running the risk of committing an offence or incurring personal liability, and at what stage they must stop trading.
This article outlines some key issues and strategies that directors should consider when times are tough.
引言
按照《中华人民共和国企业破产法》（“《企业破产法》”）第三十二条[1]规定，管理人有权起诉请求法院撤销破产企业在一定期间内的个别清偿行为。债权人在面对该类个别清偿撤销诉讼时，时常面临举证困难、法律适用不明确等困境。
我们近期代理某金融机构债权人处理一宗个别清偿纠纷诉讼二审程序。本文将尝试结合这一案件，提出我们对上述法律规定的思考，讨论债权人应对个别清偿撤销诉讼的“困境”与“突围”，并且为债权人提供缓释该类纠纷带来的潜在风险的思路。
一、债权人应对个别清偿撤销纠纷的困境
为充实破产企业偿债资产、维护债权人公平受偿，《企业破产法》赋予管理人针对债务人破产前一定期间内特定行为的撤销权。本文关注的是《企业破产法》第三十二条指向的债务人在破产申请受理前6个月内的个别清偿行为，或称“偏颇性清偿行为”。依照该条规定，撤销该类行为需要满足以下条件：
Introduction
The Insolvency, Restructuring and Dissolution Act 2018 (2020 Rev Ed) ("IRDA") allows companies intending to propose a scheme of arrangement to apply to court for a moratorium, during which proceedings against the company would be restrained so as to allow breathing room for its restructuring efforts. To balance this with the safeguarding of creditors' interests, there are certain requirements for an application for a moratorium.
The U.S. Court of Appeals for the Seventh Circuit recently affirmed the dismissal of a consumer’s lawsuit against a debt collector, holding that the consumer lacked Article III standing to sue because his allegations of ʺconfusion” and “alarm” were not sufficiently concrete to result in an injury in fact.
May, 2023 For Private Circulation - Educational & Informational Purpose Only A BRIEFING ON LEGAL MATTERS OF CURRENT INTEREST KEY HIGHLIGHTS * Supreme Court: Directors cannot escape penal liability in cheque dishonoring cases by citing company's dissolution. ⁎ Bombay High Court: A share purchase agreement containing option to sell the shares does not amount to derivative contract, thereby does not violate provisions of SCRA. * NCLAT: Fraud for the purpose of Section 66 of the IBC includes a debt where the debtor has no intention to repay.
On 21 April 2023, the English High Court handed down its written reasons for sanctioning the Adler Group restructuring plan proposed under the new Part 26A regime of the UK’s Companies Act 2006, which raised questions regarding the jurisdiction of the Court, cross-class cram downs, pari passu issues and competing valuations.
What can we say about the outcome of the GAS (Great Annual Savings Company Limited) sanction hearing that hasn’t already been reported?
It’s impossible not to comment on the fact that the plan was not sanctioned, and as a consequence of fierce opposition from HMRC that it avoided cram down. Nor that the court refused to sanction the plan on the basis that the conditions for cram down were not met – the court was not satisfied that HMRC would be better off under the plan and even if it were the judge said he would have not exercised his discretion to cram down.
The original version of this article was first published in the Trilegal Quarterly Roundup.
Key Developments
1. Delhi High Court pierces the corporate veil to make non-parties to an arbitration liable for the arbitral award
On 21 April 2023, the Hong Kong Court of Appeal (CA) released its judgment Power Securities Co Ltd v Sin Kwok Lam [2023] HKCA 594, which provided certainty on the application of the bar against reflective loss for shareholders.
Background