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    Filing for administration - get it right or else!
    2010-12-22

    Since 2003, the procedure for appointing administrators has largely consisted of filing simple forms with a court. What could be easier? A recent case has, however, highlighted the dangers of making errors in the filing process and serves as a timely warning to everyone involved in insolvency and security enforcement work.

    In Kaupthing Capital Partners II Master LP Inc, the English courts ruled that an appointment of administrators was invalid as the incorrect form had been used for the appointment.

    Filed under:
    United Kingdom, Insolvency & Restructuring, Litigation, MacRoberts LLP, Legal personality, Debt, Limited partnership, Novartis v. Union of India & Others
    Location:
    United Kingdom
    Firm:
    MacRoberts LLP
    Appeal of UK case on effect of events of default on netting and payment obligations dismissed on consent
    2010-11-05

    If you were waiting to hear what the English Court of Appeal had to say about the lower court decision in Marine Trade S.A. v. Pioneer Freight Futures Co. Ltd. you’ll be disappointed, as the appeal was dismissed by consent of the parties on October 22, 2010.

    Filed under:
    United Kingdom, Insolvency & Restructuring, Litigation, Shipping & Transport, Stikeman Elliott LLP, Bankruptcy, Debt, Unjust enrichment, Common law, Default (finance), Contract for difference, International Swaps and Derivatives Association, Insolvency Act 1986 (UK), Court of Appeal of England & Wales, High Court of Justice (England & Wales)
    Location:
    United Kingdom
    Firm:
    Stikeman Elliott LLP
    Section 2(a)(iii) of the ISDA Master Agreement, similar clauses and insolvency
    2010-11-11

    There have been so many articles written and opinions expressed on the spate of cases on the effect of how netting provisions in over-the-counter ("OTC") derivative contracts work when a counterparty becomes in default, that you would be forgiven for being confused about the current position. Now that the dust has settled (for the time being at least), this article takes stock and seeks to make matters as straightforward as possible.

    Filed under:
    United Kingdom, USA, Derivatives, Insolvency & Restructuring, Reed Smith LLP, Bankruptcy, Collateral (finance), Over-the-counter (finance), Debt, Foreclosure, Default (finance), Lehman Brothers
    Authors:
    Siân C. Fellows , Paul M. Dillon
    Location:
    United Kingdom, USA
    Firm:
    Reed Smith LLP
    Insolvency tourism: will the proposed restructuring moratorium entice more to these shores?
    2010-11-18

    On 26 July 2010, the Insolvency Service issued proposals for a new type of short-term restructuring moratorium. The moratorium would be available through a court-based process to companies with a viable business and the general support of creditors. The proposed moratorium could have the potential to encourage more companies to view the UK as an attractive jurisdiction for restructuring.

    What are the proposals?

    The main features are:

    Filed under:
    United Kingdom, Insolvency & Restructuring, Dentons, Debt, Extraterritoriality, Liquidation, Balance sheet, Moratorium, Stakeholder (corporate), Comity, Debtor in possession, UNCITRAL, Companies Act 2006 (UK), Insolvency Act 1986 (UK)
    Authors:
    Zoe Thirlwell
    Location:
    United Kingdom
    Firm:
    Dentons
    UK Determinations Panel gives reasons for imposing financial support directions on six Lehman companies
    2010-10-08

    The Determinations Panel gave its reasons for imposing financial support directions (FSDs) on six Lehman Brothers companies on 29 September 2009. SNR Denton represented 22 of the 44 companies targeted for FSDs. The Determinations Panel accepted our submission that it would not be reasonable to impose an FSD on any of the companies we represented because of the Pensions Regulator's failure to particularise its case against them.

    Background

    Filed under:
    United Kingdom, Employee Benefits & Pensions, Insolvency & Restructuring, Dentons, Debt, Holding company, Judicial review, Defined benefit pension plan, Parent company, The Pensions Regulator (UK), Lehman Brothers, Trustee
    Authors:
    Alan Jarvis , Elmer Doonan , Andrew Patten
    Location:
    United Kingdom
    Firm:
    Dentons
    Regulated apportionment arrangements
    2010-10-11

    Summary. The Pensions Regulator (the Regulator) has issued a statement on regulated apportionment arrangements (RAA) and employer insolvency (the statement).

    Filed under:
    United Kingdom, Employee Benefits & Pensions, Insolvency & Restructuring, Mayer Brown, Share (finance), Debt, Due diligence, Buyout, The Pensions Regulator (UK), Pension Protection Fund, Pensions Act 1995 (UK), Trustee
    Location:
    United Kingdom
    Firm:
    Mayer Brown
    Limitation - does time stop running when a company is in administration?
    2010-10-14

    The Limitation Act 1980 prescribes various periods of time in which a claim must be brought. In the event that this is not undertaken within the specified period, the cause of action will be statute barred and as such unenforceable.

    In the case of a simple contract, the period is six years and in general begins to run from the date on which the cause of action accrued. In order to 'stop the clock', proceedings (a claim) will have to be brought.

    Filed under:
    United Kingdom, Insolvency & Restructuring, Litigation, Penningtons Manches Cooper LLP, Debtor, Statute of limitations, Debt, Consent, Liability (financial accounting), Liquidation, Limitation Act 1980 (UK), Insolvency Act 1986 (UK), Enterprise Act 2002 (UK)
    Authors:
    Jonathan Craft
    Location:
    United Kingdom
    Firm:
    Penningtons Manches Cooper LLP
    Before you charge in - Part 10. A bird in the hand...when does the right to set-off arise?
    2010-10-20

    Knowing how much money you owe and are owed is critical when considering disputes with other parties. You need to consider whether a right of set-off exists between you and the other party.

    Filed under:
    United Kingdom, Insolvency & Restructuring, Litigation, Gowling WLG, Bankruptcy, Debtor, Arbitration clause, Debt, Liquidation
    Location:
    United Kingdom
    Firm:
    Gowling WLG
    Regulated Apportionment Arrangements – Regulator gives guidance on how to apply for approval
    2010-08-24

    The Pensions Regulator (TPR) has issued a statement on Regulated Apportionment Arrangements (RAAs) and employer insolvency.

    Employers of multi-employer schemes can use a number of mechanisms under the Employer Debt Regulations 2005 to manage a debt triggered under section 75 of the Pensions Act 1995. Broadly, RAAs can be used in situations where a scheme has entered into a Pension Protection Fund (PPF) assessment period, or is likely to enter into such an assessment period. TPR must approve an RAA.

    Filed under:
    United Kingdom, Employee Benefits & Pensions, Insolvency & Restructuring, Freshfields Bruckhaus Deringer, Debt, The Pensions Regulator (UK), Pension Protection Fund, Pensions Act 1995 (UK)
    Location:
    United Kingdom
    Firm:
    Freshfields Bruckhaus Deringer
    Economic interest required
    2010-08-25

    A party cannot appeal a decision made in bankruptcy proceedings by reason only of a personal interest in the outcome. An economic interest is a pre-requisite.

    This was confirmed by the court in Sands and another v Monem and another, in which the bankrupt had transferred the interest in his home to his wife before being made bankrupt. The transfer was made allegedly in order to settle a debt, although this was not reflected in the documentation. That transfer was successfully set aside as a preference by the bankrupt's trustee.

    Filed under:
    United Kingdom, Insolvency & Restructuring, Litigation, Gowling WLG, Bankruptcy, Interest, Debt, Standing (law), Economy, Trustee
    Authors:
    Ian Weatherall , Greg Standing
    Location:
    United Kingdom
    Firm:
    Gowling WLG

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