When undergoing a restructuring, a borrower/officeholder's main focus is often the company's lenders. However, there are occasions when HMRC's agreement can be just as key to ensuring any process runs smoothly. In this article, Sonia Jordan and Hayley Çapani discuss some key areas where HMRC's agreement is essential to ensuring a smooth restructuring or insolvency process.

Section 38 provides a mechanism by which a creditor can take the place of the trustee in any proceeding where the trustee refuses or fails to act. Essentially, the creditor stands in the place of the trustee and, if successful in the proceeding, is entitled to keep all proceeds, except those that exceed the total of the creditor’s claim and the creditor’s costs of the proceeding. Any surplus proceeds received by the creditor are the property of the bankrupt’s estate.

On 14 December 2009, the same day on which Nakheel, a Dubai World subsidiary, was due to make payment under its 2009 sukuk, the Government of Dubai announced that it had received support from the Government of Abu Dhabi and the UAE Central Bank and would pay the US$4.1 billion due. It also announced that it had secured funding of an additional US$5.9 billion to be used to meet “interest expenses and working capital [of Dubai World] through April 30, 2010 – conditioned on the company being successful in negotiating a standstill”.

This legal update gives an overview of the key amendments to Federal Law No 127 - FZ "On insolvency (bankruptcy)" dated 26 October 2002 (the Insolvency Law) and Federal Law No 40 - FZ "On insolvency (bankruptcy) of credit organisations" dated 25 February 1999 (the Insolvency Law of Credit Organisations).

On 17 April 2009 the Russian State Duma adopted Federal Law No 73 - FZ - "On amendments to certain legislative acts of the Russian Federation" (the 73-FZ Law).

The Ontario Court of Appeal has confirmed the asset backed commercial paper CCAA Plan of Arrangement (2008 CaswellOnt 4811 (C.A.)). The reasoning of the Ontario Superior Court approving the Plan of Arrangement was reviewed in previous editions of this Newsletter.

KEY POINTS

Recovery of legal costs in insolvency proceedings can be a difficult procedure, as the ability of counsel to claim costs depends on the work performed, the timing of the work, and for whom the work was done.

In a corporate reorganization under the Companies’ Creditors Arrangement Act (the “CCAA”), the design of appropriate classes of creditors can be central to the success of the restructuring initiative. The requisite “double majority” for a plan of arrangement to be approved, being a majority in number and two thirds by value of support from creditors, is required per class in order to be binding on that class.

Section 81.1 of the Bankruptcy and Insolvency Act (“BIA”) grants a temporary super priority to suppliers who provided goods to a bankrupt purchaser or where a receiver has been appointed in relation to the purchaser. The section requires the supplier to provide a written demand to the purchaser and allows the supplier to repossess the goods within thirty days of the date of the delivery of goods.

In Kerr Interior Systems Ltd., the Court of Queen’s Bench of Alberta discussed a number of issues which arose as a result of two creditors registering builders liens against a third party’s property in Saskatchewan.