US – ONGOING CONSIDERATION BY NAIC OF RESERVE FINANCING, USE OF CAPTIVES, AND PRINCIPLE-BASED RESERVING

Over the last few years Spain has amended its insolvency laws to promote
out of court refinancing arrangements as a much needed alternative
to formal insolvency proceedings. The outcome of these changes,
aimed at putting Spain on a par with other EU jurisdictions, is yet to be
seen. However, what is clear is that the latest round of amendments
has substantially improved the possibility of reaching an out of court
refinancing settlement in Spain.
Historically, in relation to syndicated facilities, out of court refinancing

Restructuring & Insolvency
Global
Restructuring & Insolvency Newsletter
June 2014
In this issue:
Challenges faced by foreign creditors of Suntech
With an eye on the insolvency and restructuring proceedings of Suntech Power Holdings' principal operating subsidiary in China, Kwun Yee Cheung surveys the difficulties confronting foreign creditors in Chinese bankruptcies and restructurings. > Read more
Using English or US proceedings to restructure Asian businesses

Billed as INSOL’s “most popular session”, the plenary session Hot Topics – Avoid Being Burnt! provided a brief overview of developments in the insolvency landscape. The session panel was chaired by Jay A. Carfagnini (Goodmans LLP) with panelists the Honourable Justice Paul Heath of the High Court of New Zealand, Gabriel Moss QC, Gaurav Malhorta (Ernst & Young), and Jason Karas (Lipman Karas).

The panel discussed the following points:

Litigation funding can form a useful part of the arsenal of an insolvency practitioner when attempting to maximise the return to creditors. Yet funders can be met with suspicion by creditors and courts alike, depending on the country in which you pursue your litigation.

This break out session sought to highlight key issues for funders and borrowers, and regional differences in how litigation funding is perceived and applied.

Some businesses operate in a naturally risky environment where a major crisis event is a real possible consequence of everyday operations. What do you do when something literally blows up?

In the context of the scenario posed for the first day of the conference, this panel considered some of the obligations of the board and the officers of a near insolvent company in managing financial, regulatory, and environmental risks.

As restructuring and cross-border insolvency issues become increasingly global, an understanding of the influence of different cultures and some of the key drivers is critical. The INSOL panel was diverse, with members from Asia (Helena Huang, King & Wood Mallesons), North America (Renee Dailey, Morgan, Lewis & Bockius LLP), South Africa (Paul Winer, ENSafrica) and Latin America (The Honourable Judge Maria Cristina O’Reilly, National Commercial Court, Argentina).

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.

It has become increasingly common for companies needing to restructure to open restructuring / insolvency proceedings in a jurisdiction outside of where their centre of corporate control is located or assets are concentrated. Forum shopping in a restructuring context is becoming more common place, however it also remains highly controversial. The panelists at the INSOL breakout session, A Hitchhikers Guide of Forum Shopping, considered what makes a good forum for restructuring / insolvency, and whether forum shopping is desirable or undesirable.

Piggybacking off the case study involving a UK-based company in crisis after an oil spill in Nigeria, panelists Ryan Eagle of Ferrier Hodgson, Marcelo Carpenter of Sergio Bermudes Law Office, David Kelleher of Fortress Investment Group (Australia) Pty Ltd., and Fidelis Oditach of South Square discussed the key decision-making factors of investing in a similarly-situated oil and gas company. Some of the key takeaways applicable to investing in oil and gas companies generally were: