COMMODITIES CASE UPDATE JULY 2023 HFW COMMODITIES CASE UPDATE JULY 2023 We are delighted to present the July 2023 edition of the Commodities Case Update, with a summary of 12 key recent cases relevant to the commodities sector. With a market leading commodities team, we have over 100 lawyers who provide a full service internationally. The group is led by a team of over 25 partners, who are based in all our offices around the world, including in the major trading hubs of London, Paris, Geneva, Dubai, Singapore, Hong Kong and Sydney.

The economic clouds continue to darken alongside the incessant rainstorms outside, and people are paying closer attention to the forecasts to understand what to do to keep dry.

As interest rates continue to rise, and many commentators describe a challenging economic outlook amid an extending inflationary cycle, one only has to look at the recent company collapses in the construction sector to see the struggle that businesses are facing. Times are, and certainly will be, tough for a large number of people, and there are clearly sectors in distress.

When feeling a little lost, stressed or fearful about life its fairly natural to gravitate towards things that give us a sense of ease (dopamine), control, distraction and worth. I used to find these escapes in in alcohol, and then food, and from time to time I still do in shopping to the detriment of my mental health.

But all things in moderation as they say, and I would argue there is actually meaning in some material things that give us a sense of remembrance or comfort. Hard work should be rewarded and this is often a nice way to do so.

Global political crises, volatile interests, inflation and supply chain issues challenge many companies. In this blog series, VISCHER's restructuring & insolvency team will show how companies can navigate through these challenges. Here you will find answers to the most important questions regarding the duties of a director of a Swiss subsidiary.

1. What is the group dilemma and what interests must a Swiss subsidiary's board safeguard?

A “pre-pack” is a sale of all or part of a distressed company’s business or assets, negotiated before the company enters a formal insolvency process and executed by the appointed insolvency practitioner immediately after the insolvency process begins.

It is worthwhile for creditors to take part in litigation even if the outcome could go against them. This way, they can help prevent the court from issuing rulings sought by colluding debtors and their allies.

Der Anwalt haftet, wenn er seinen Mandanten fälschlicherweise nicht über die Insolvenzreife aufklärt. Allerdings nur, wenn die Prüfung der Insolvenzreife Gegenstand des Beratungsvertrages geworden ist. Den Gegenstand des Beratungsvertrages muss der Mandant darlegen und beweisen. Die Anforderungen an diese Darlegungs- und Beweislast dürfen jedoch nicht überhöht werden, so der BGH in seinem Beschluss vom 26.01.2023 (Az. III ZR 91/22).

The Commercial Chamber of the French Supreme Court ("Cour de cassation") has recently handed down a decision of particular interest for distressed M&A transactions: Cass. com. 1er mars 2023, no. 21-14.787, FS-B.

Alexandre Koenig, partner and head of the firm's restructuring and insolvency practice in France analyses the legal and practical consequences of this decision for sellers of French distressed companies.

Context

Directors and officers should take note of a recent decision from the US Bankruptcy Court for the Southern District of New York concerning access to D&O insurance policy proceeds. In In re SVB Financial Group, Case No. 23-10367 (Bankr. S.D.N.Y.

香港高等法院于近日作出标志性判决（HCA 1269/2021）（“本案”），肯定了维好协议、流动性资金支持等增信措施的可执行性，支持了某中资离岸债券的信托人向债券的维好提供方申偿的债券本金、利息及其他支出。

特别地，上述债券在本案被告破产重组程序启动前已逾期，本案被告本应根据维好安排进行资金偿付却未履行其在维好安排下的该等偿付义务。

一、案情简介

1.  争议背景:

本案原告为本次债券的信托人，代表债券投资人的利益（“原告”）。本案被告为替本次债券提供维好协议、流动性资金支持等增信措施的境内主体（“被告”）。