As interest rates remain relatively low and financial liquidity levels remain high, investors with a higher risk appetite will continue to find increased opportunities with distressed assets. In Brazil, these have already reinvigorated the trend of M&As in Q3 of 2020.

A revigorated trend

INTRODUCTION

1) Premise.

Italian Law Decree no. 83 of 27 June 2015, converted with amendments by Italian Law no. 132 of 6 August 2015, introduced an important amendment within the context of transfers or sales carried out while composition with creditors proceedings is pending, by adding art. 163 bis to the Italian Bankruptcy Law (“BL”), titled "Competing Offers". The rationale of such measure, made clear by the legislator itself in the report accompanying the conversion bill, is twofold:

(i) maximize the recovery prospects of the composition creditors;

Executive summary

On a UK company’s insolvency, the UK tax authority (HMRC) will become a preferential creditor in respect of certain unpaid taxes (Crown Preference) with effect from 1 December 2020. Despite lobbying against the move (including in light of the COVID-19 pandemic), the UK government has persisted with the change, perhaps in an attempt to shore up its tax take.

The reform in context

The Golden Globe Award-winning Netflix series is not the only ‘Crown’ returning prior to Christmas 2020. HMRC’s preferential creditor status is also being restored on 1 December 2020.

Recent M&A deals the teams have worked on involving insolvent corporates have highlighted the challenges which exist around the transfer of customer lists and databases, which are often a significant asset for the buyer.

1) Premessa.

Il D.L. 27 giugno 2015 n. 83, convertito con modificazioni dalla Legge 6 agosto 2015, n. 132, ha introdotto un importante correttivo in materia di atti dismissivi compiuti in costanza di concordato preventivo, mediante l’inserimento dell’art. 163 bis L.F. (rubricato “Offerte concorrenti”). La ratio dell’intervento normativo, dichiarata dallo stesso legislatore nella relazione d’accompagnamento al disegno di legge di conversione, è duplice:

(i) massimizzare la prospettiva di recovery dei creditori concordatari;

1. What is distressed M&A?

This note considers how the recent changes to UK insolvency law introduced by the Corporate Insolvency and Governance Act 2020 ("CIGA") might affect those involved in the sale and purchase of commodities. In particular, it looks at the impact of Section 14 of CIGA on contracts for the supply of goods or services, and on the typical rights and remedies of the seller / supplier under such contracts.

When a business is distressed and is due to run out of cash, advisors are often called upon to carry out an accelerated M&A process. Whilst there may be scope for the process to be run on a solvent (share sale) basis, it may need to be implemented on an assets basis, often via a formal insolvency process. Because of the undeniable threat of insolvency, directors of distressed businesses should obtain specialist legal advice on their duties at the earliest possible stage.

Board considerations