Company directors owe several fiduciary duties, one of which is to act in the best interest of shareholders. But to what extent does that duty to shareholders apply in the context of the financial health of the company? The award-winning commercial and litigation lawyers at ParrisWhittaker are experienced in advising company directors on their duties, including where there are concerns around the lawfulness of paying dividends.

The high-profile Chapter 11 case of the FTX Trading group involves its Japanese affiliates including FTX Japan, which operated a registered cryptocurrency exchange in Japan and has been ordered by the Financial Services Agency of Japan to suspend its business upon the filing for Chapter 11. Recently, a motion was made for entry of orders approving, among other things, the group to sell FTX Japan's business through so-called “363 sale”.

It’s often hard to persuade a bankruptcy court to grant a motion for substantial contribution. Any attorney thinking about making a motion should first ask herself two questions. First, has my work benefitted both my client and other creditors? Second, did my work result in more than an incidental benefit to the bankruptcy estate? If the answer to either question is no, then the attorney should forget about making the motion. The time spent on it will be wasted, and the motion will be denied.

In Company Law the will of the majority shareholders usually wins out. This is because the majority tend to be in possession of the most company capital. As such, it is the majority who “should” triumph when it comes to managing the company’s direction. Indeed, the rights of minority shareholders set out in the Companies Act 2006 (“CA 2006”) are small in number. They include:

We have identified four judgments from 2022 which are significant for those in the private equity sector and may have particular relevance for sponsors, shareholders, management teams and/or appointees to boards. In this overview we summarise the key points and some of the practical implications.

The decisions we address are:

In times of economic uncertainty, fraud typically increases. And these are certainly economically uncertain times. Fraud has been on the rise over recent years and that trend is set to continue. The motivation and opportunity to commit fraud increases as financial pressures loom over individuals and businesses. We are also set to see a continued increase in insolvencies as the impact of the pandemic and other global events set in. The appointment of insolvency practitioners means frauds which might have otherwise continued or remained concealed are more likely to be uncovered.

Effective 1 January 2023, the revised Swiss Code of Obligations (CO) provides inter alia for certain new (and more stringent) duties, placed upon the members of the board of directors, regarding the financial condition of a Swiss Corporation (art. 725 et seq. CO). Directors will have to pay close attention to any threat of insolvency (illiquidity) and comply with short and non-extendable deadlines (90 days) when, in cases of over-indebtedness, pursuing restructuring measures in order to avoid filing for solvency proceedings.

In this client alert we set out some of the key lessons from the recent judgment in ABT Auto Investments Ltd v Aapico Investment Pte Ltd [2022] EWHC 2839 (Comm), which considers the validity of appropriation as an enforcement power pursuant to Regulation 17 of the Financial Collateral Arrangements (No. 2) Regulations 2003 (“FCARs”), the duty imposed on a collateral-taker by Regulation 18 of the FCARs in connection with the valuation of a collateral subject to appropriation, and provides useful guidance on what is “commercially reasonable” in this context.

December, 2022 For Private Circulation - Educational & Informational Purpose Only Between the lines... A BRIEFING ON LEGAL MATTERS OF CURRENT INTEREST KEY HIGHLIGHTS ⁎ NCLAT: Adjudicating authority has no jurisdiction to evaluate the decision of the committee of creditors to enquire into the justness of the rejection of a resolution plan. ⁎ NCLAT: Advance paid towards service is operational debt. ⁎ NCLAT: Provident fund dues are not assets of the Corporate Debtor; they have to be paid in full. ⁎ CCI: Google’s Play Store Payment Policies are anticompetitive and discriminatory.

2022 has been a challenging year. In addition to the continuing impact of COVID-19 and the recent relaxation measures in China, the war in Ukraine has also brought impacts on society, politics and businesses.