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    The Court of Appeal orders reference to ECJ on meaning and direct effect of Article 8 of the Insolvency Directive
    2016-09-30

    The Court of Appeal has ordered a reference to the Court of Justice of the European Union (ECJ) in Grenville Holden Hampshire v the Board of the Pension Protection Fund which involves a pension scheme member, whose early retirement pension was reduced by two-thirds on the scheme's entry to the PPF, arguing that the statutory cap on compensation payable by the PPF does not give full effect to Article 8 of the EU Insolvency Directive.

    Filed under:
    European Union, United Kingdom, Employee Benefits & Pensions, Insolvency & Restructuring, Litigation, Baker McKenzie, Direct effect of EU law, Pension Protection Fund, Court of Justice of the European Union, Court of Appeal of England & Wales
    Location:
    European Union, United Kingdom
    Firm:
    Baker McKenzie
    Breaches of the Code of Banking Practice result in a challenge to the enforcement of a guarantee
    2016-07-08

    This week’s TGIF considers the most recent decision in a line of cases which hold that the provisions of the Code of Banking Practice may be incorporated into loan agreements, as well as guarantees given by individuals.

    BACKGROUND

    Filed under:
    Australia, Banking, Insolvency & Restructuring, Litigation, Corrs Chambers Westgarth, Contractual term, Shareholder, Surety, Debtor, Breach of contract, Discovery, Joint venture, Warranty, National Australia Bank, Commonwealth Bank, Victoria Supreme Court, Court of Appeal of England & Wales
    Authors:
    David Abernethy , Kirsty Sutherland , Mark Wilks , Matthew Critchley
    Location:
    Australia
    Firm:
    Corrs Chambers Westgarth
    Liquidators examinations and legal professional privilege
    2009-03-02

    Hong Kong's highest court has considered for the second time in recent years the conduct of examinations under section 221 of the Companies Ordinance. That section enables (amongst other things) a court to compel any persons whom it believes may have information concerning the affairs or dealings of a company in liquidation to be examined in private under oath.

    Filed under:
    Hong Kong, Insolvency & Restructuring, Litigation, Herbert Smith Freehills LLP, Audit, Discovery, Negligence, Liquidation, Writ, Liquidator (law), Tangible property, Legal professional privilege, Ernst & Young, Court of Appeal of England & Wales, High Court of Justice, Court of Final Appeal (Hong Kong)
    Location:
    Hong Kong
    Firm:
    Herbert Smith Freehills LLP
    UK Supreme Court refuses to enforce US judgment made in insolvency proceedings against English resident defendants
    2012-11-01

    In Rubin v Eurofinance SA [2012] UKSC 46, the Supreme Court (by a majority of 4 to 1) reversed the Court of Appeal’s unanimous decision and held that the English court would not enforce a judgment made by the New York court in insolvency proceedings to which the defendant did not submit.

    Filed under:
    United Kingdom, USA, Insolvency & Restructuring, Litigation, Herbert Smith Freehills LLP, Common law, Court of Appeal of England & Wales, UK Supreme Court
    Authors:
    John Whiteoak , Andrew Cooke
    Location:
    United Kingdom, USA
    Firm:
    Herbert Smith Freehills LLP
    Court of Appeal provides clarity on payment obligations owed to insolvent counterparties
    2012-04-03

    In a keenly anticipated judgment, the Court of Appeal today handed down its verdict in four appeals1 concerning the interpretation of various terms of the 1992 ISDA Master Agreement.

    Filed under:
    United Kingdom, Derivatives, Insolvency & Restructuring, Litigation, Herbert Smith Freehills LLP, Court of Appeal of England & Wales
    Authors:
    Damien Byrne Hill , Ralph Sellar
    Location:
    United Kingdom
    Firm:
    Herbert Smith Freehills LLP
    JSC BTA Bank v A [2010] EWCA Civ 1141: appointment of a receiver
    2011-06-08
    1. Introduction

    Most reading this will know that freezing orders are granted to prohibit defendants from disposing of or dissipating their assets in a way that will prevent the claimant from enforcing any judgment he obtains. If the defendant disobeys, he is at risk of contempt. But the primary purpose of contempt is to punish the defendant. Many claimants will simply be concerned to ensure that the defendant’s money is frozen.

    Filed under:
    United Kingdom, Insolvency & Restructuring, Litigation, Herbert Smith Freehills LLP, Injunction, Breach of contract, Discovery, Holding company, Contempt of court, Court of Appeal of England & Wales
    Location:
    United Kingdom
    Firm:
    Herbert Smith Freehills LLP
    Auditors’ liability in fraud cases: House of Lords rules in Moore Stephens v. Stone & Rolls Limited
    2010-06-03

    In a decision handed down just before the end of term, auditors have won an important House of Lords ruling limiting their liability in cases where a “one man” company is used as a vehicle for fraud. The Law Lords dismissed by a majority of three to two a negligence claim brought against an audit firm for failing to detect a massive fraud at Stone & Rolls, a trading company that fell in the late 1990s – holding that the liquidators could not bring a claim for damages when the company itself was responsible for the fraud.

    Background

    Filed under:
    United Kingdom, Company & Commercial, Insolvency & Restructuring, Litigation, Herbert Smith Freehills LLP, Bankruptcy, Letter of credit, Fraud, Audit, Negligence, Liquidator (law), Commodity market, House of Lords, Court of Appeal of England & Wales, High Court of Justice
    Location:
    United Kingdom
    Firm:
    Herbert Smith Freehills LLP
    The House of Lords sets aside order for examination of foreign officer of judgment debtor
    2010-06-03

    In a recent opinion (Masri v Consolidated Contractors International Co. SAL and others [2009] UKHL 43) handed down in the final days of the House of Lords, their Lordships clarified a point which may be of some significance for successful claimants seeking to enforce a Court order against corporate defendants.  

    Filed under:
    United Kingdom, Insolvency & Restructuring, Litigation, Herbert Smith Freehills LLP, Fraud, Debt, Contempt of court, House of Lords, Court of Appeal of England & Wales
    Location:
    United Kingdom
    Firm:
    Herbert Smith Freehills LLP
    Court of Appeal holds that anti-deprivation principle does not apply to provisions relating to the termination of an IP licence on insolvency
    2010-03-02

    The anti-deprivation principle provides that “there cannot be a valid contract that a man’s property shall remain his until his bankruptcy, and, on the happening of that event, go over to someone else, and be taken away from his creditors”.

    Filed under:
    United Kingdom, Insolvency & Restructuring, Intellectual Property, Litigation, Herbert Smith Freehills LLP, Share (finance), Bankruptcy, Breach of contract, Interest, Joint venture, Court of Appeal of England & Wales
    Location:
    United Kingdom
    Firm:
    Herbert Smith Freehills LLP
    Court of Appeal reverses earlier decision and holds that anti-deprivation principle does not apply to provisions relating to the termination of an IP licence on insolvency
    2010-01-26

    In September 2009 we reported on the first instance decision in Butters and ors v BBC Worldwide Ltd and ors, accessible here in which the Court held that contractual provisions in a joint venture agreement taken together with termination provisions in a licence of IP rights were void since the effect of those provisions on insolvency was to deprive creditors' access to assets and therefore contrary

    Filed under:
    United Kingdom, Insolvency & Restructuring, Intellectual Property, Litigation, Media & Entertainment, Herbert Smith Freehills LLP, Share (finance), Joint venture, Subsidiary, Court of Appeal of England & Wales
    Authors:
    Joel Smith , Laura Deacon
    Location:
    United Kingdom
    Firm:
    Herbert Smith Freehills LLP

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