Issue 6 | April 2017 Disputes Digest 2 | Disputes Digest Corporate counsel’s guide to the key cases of 2016 (litigation) Corporate counsel’s guide to the key cases of 2016 (arbitration) Singapore targets effi ciency in investment arbitration proceedings Does the MasterCard class action mark the dawn of a new era in UK litigation?

As the dust begins to settle after the EU referendum and the potential ramifications of Brexit continue to be digested, we examine the potential impact of Brexit on the UK cross-border restructuring and insolvency regime and its consequences for the UK’s reputation as a leading creditor-friendly restructuring jurisdiction.

Introduction:

The Court of Justice of the European Union has ruled that a provision of German law falls within the scope of Article 4 of the EC Regulation on Insolvency Proceedings, thereby paving the way for a German court to require a director of an English incorporated company to make payments under German law where the company has been placed into insolvency proceedings in Germany. 

On 7 September 2015 an act amending the Civil Procedure Code was published. The amendments include changes to proceedings on the enforcement of liabilities. The changes aim to speed up proceedings by computerisation, and at the same time clarify various issues that have arisen in the application of existing regulations.

Introduction

On 1 August, new guidelines came into force for Member States to use in assessing whether support measures to rescue and restructure firms in difficulty are compatible with State aid rules.

I am delighted to present the third edition of The Issues, an annual publication brought to you by our team at CMS Prague. As is tradition, the articles will look at general legislative developments as well as new opportunities and legal issues that you will be facing in the year ahead. We also look at sector specific topics from across industries such as consumer products, energy, financial services, hotels & leisure, lifesciences, real estate and technology, media & telecoms.

Following the collapse of Banco Espirito Santo, the Court of Appeal held that a $835m loan had not been transferred to Novo Banco.

This case concerns a Court of Appeal hearing following the 2014 collapse of substantial Portuguese bank Banco Espirito Santo ('BES').

In June 2014, Oak Finance Luxembourg SA ('Oak') entered a facility agreement with BES to lend approximately $835million. The agreement contained English law and jurisdiction clauses.

ECJ decides that rights in rem should be interpreted in accordance with German law, despite insolvency proceedings having been opened in France

In the recent case of SCI Senior Home (in Administration) v Gemeinde Wedemark, Hannoversche Volksbank eG, the Court of Justice of the European Union handed down judgment on the question of whether a right in rem created under national law should be considered a "right in rem" for the purposes of Article 5 of the Council Regulation (EC) 1346/2000 on insolvency proceedings (the "Insolvency Regulation").

On 23 June 2016, a 52% majority of the British people voted in favour of leaving the European Union. It is unclear the extent of the effect this will have, but restructuring and insolvency professionals face an uncertain future if the EC Regulation on Insolvency Proceedings 2000 and the Recast Insolvency Regulation, which replaces it in 2017, cease to apply to cross border restructurings in the UK.