In this chapter of our Annual Insurance Review 2023, we look at the main developments in 2022 and expected issues in 2023 for restructuring and insolvency.
Key developments in 2022
Corporate insolvencies have been rising sharply in 2022 albeit against the backdrop of record low insolvency filings during the pandemic. By June, they had reached their highest quarterly level since 2009 and the depths of the global financial crisis.
Corporate Enforcement Authority Issues Helpful Guidance Note
The Preventative Restructuring Directive
In July 2022, the European Union (Preventive Restructuring) Regulations 2022 (the Regulations) transposed the requirements of EU Directive 2019/1023 (the Preventative Restructuring Directive) into Irish law.
Certain of the consequential amendments to the Companies Act 2014 (the Act) relate to the duties and responsibilities that directors of companies have in circumstances of financial difficulty and/or insolvency.
It is difficult to predict what 2023 might hold for businesses in the UK. Given the difficult economic environment, many will already be facing a challenging start to the year. Although the challenges of the pandemic (such as lock downs) have gone, others have materialised. Energy price hikes and inflation rises continue to make trading conditions tough.
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。
Introduction
In a recent decision, the United Kingdom Supreme Court clarified the duty of directors of insolvent or near insolvent companies to consider the interests of creditors. While BTI 2014 LLC v Sequana SA [2022] UKSC 25 relates to company law in the United Kingdom, it will have far reaching implications on the understanding of directors' duties relating to insolvency across the commonwealth and, in particular, offshore jurisdictions.
Sequana
This guide should not be relied on as a definitive guide to the legislation and should not be relied on as legal advice. The particular circumstances of any situation will need to be considered to determine if the overseas entity is one that is captured by the legislation, if the estate is a qualifying estate, and whether the beneficial owners need to be registered. As a result, this guide is intended only as a high-level overview.
This guide covers the position of property and land situated in England and Wales only.
What is the Register of Overseas Entities?
The Corporate Enforcement Authority recently published its guidance note on EU Directive 2019/1023 known as the "Preventive Restructuring Directive", which you will find here (Information Note).
This guide should not be relied on as a definitive guide to the legislation and should not be relied on as legal advice. The particular circumstances of any situation will need to be considered to determine if the overseas entity is one that is captured by the legislation, if the estate is a qualifying estate, and whether the beneficial owners need to be registered. As a result, this guide is intended only as a high-level overview.
This guide covers the position of property and land situated in England and Wales only.
Introduction
In the recent decision of Re Ascentra Holdings Inc.(in Official Liquidation), the Grand Court of the Cayman Islands has once again confirmed the significant scope of its sanction jurisdiction in the context of official liquidations under section 110(2) of the Companies Act.
Introduction for Insolvency & Restructuring Case Summaries 2021-2022 It gives us great pleasure to introduce our Insolvency & Restructuring Case Summaries 2021-2022.
This is the first year that we have published a collated version of the Case Summaries in addition to our regular insolvency InFocus updates. The Case Summaries have been produced in response to feedback that this would be a useful resource.