Issues will arise upon a UK exit in relation to restructuring tools such as schemes of arrangement and in relation to insolvency processes; there are also special EU insolvency rules for financial institutions which will be affected. Finally there are elements of EU financial services laws which impinge on insolvencies and remove uncertainties, such as settlement finality and financial collateral.
The recent case of Thomas & another v Frogmore Real Estate Partners & others [2017] EWHC 25 (Ch) provides useful guidance for anyone analyzing the centre of main interests (“COMI”) of a company not registered in the UK or other EEA state for the purposes of assessing whether or not insolvency proceedings relating to the company can be instigated in the UK courts under the EC Regulation.
If 2016 ended with more questions than answers as to how Brexit would take shape, 2017 began with at least a little more clarity.
Background
The EU-Commission is planning a European wide pre-insolvency (preventive) restructuring procedure in order to harmonise pre-insolvency proceedings within the EU, thus strengthening the EU domestic and capital markets, bringing clarity to cross-border transactions, and preventing forum-shopping.
At the end of 2016, the European Parliament issued a proposed directive (COM (2016)723/30/EU) in this regard (Directive Proposal).
Facts
Le cas est suffisamment rare pour être souligné : la justice européenne – celle-là même qui a milité et créé le droit à l’oubli – envoie un signal fort en vue de rappeler que celui-ci n’est pas absolu. Saisie d’une question impliquant les registres publics des personnes morales, elle estime qu’il n’y a en principe pas de droit à l’oubli pour les données à caractère personnel y figurant.
Europe has been a hot bed of legislative reform in the R&I space since the GFC. This panel discussed where some of the key jurisdictions had ended up in this process, in some cases, making significant changes to allow greater flexibility of treatment and efficiencies of process. Led by Philip Hertz (Clifford Chance), Lucas Kortmann (RESOR), Angel Martin (KPMG) and Dr Leo Plank (Kirkland & Ellis) discussed processes available in the UK, the Netherlands, Spain and Germany and some impending changes.
There has been great discussion over the course of INSOL on the various restructuring and insolvency reforms being considered or implemented globally. In the break out session ‘The good, the bad and the ugly: national and regional law reforms’, panellists drilled down into the detail of some of these reforms. The panel considered reforms in the EU (Prof. Christoph Paulus, Hamboldt-Universitat zu Berlin), the UK (Mark Craggs, Norton Rose Fulbright LLP), Singapore (Sushil Nair, Drew & Napier LLC), and the US (Donald S.
The European Account Preservation Order Regulation 655/14 came into effect yesterday, 18 January 2017 throughout Europe except in the UK and Denmark - who have not adopted the regulation. The Regulation establishes a procedure which enables creditors from a participating member state to seek an Order preventing a debtor from dissipating assets until such time as the creditor’s proceedings for Judgement are determined and enforced.
Suppose you were a German bank lending to a Spanish debtor under a loan agreement governed by German law. Once your Spanish debtor stops paying, the bank would have to obtain a German legal judgment and would then have to enforce it in Spain. Any measure to secure the debtor's assets in the meantime, is typically subject to the jurisdiction where the asset is located, or subject to lengthy recognition proceedings. Having to resort to local law measures usually puts foreign creditors in a worse-off position than local ones.