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A spectrum of possibilities: characterising a charge as fixed or floating after Re Spectrum Plus
2023-05-25

The High Court has held that certain assets sold by a company around the time of its administration were subject to a fixed charge rather than a floating charge and as such, the sale proceeds were not to be distributed to preferential creditors or unsecured creditors: Avanti Communications Ltd, Re [2023] EWHC 940 (Ch).

Filed under:
United Kingdom, Banking, Insolvency & Restructuring, Litigation, Herbert Smith Freehills LLP, Employee Retirement Income Security Act 1974 (USA), Office of Communications (UK)
Authors:
Natasha Johnson , Ceri Morgan
Location:
United Kingdom
Firm:
Herbert Smith Freehills LLP
View Original Article
Arbitration of insolvency disputes: The View from the Australian courts
2023-05-23

Two recent judgments from different Australian courts have considered circumstances in which insolvency disputes can (or cannot) be arbitrated in accordance with pre-existing arbitration agreements. In particular, the decisions address the following two key issues:

  • when certain insolvency claims can be arbitrated; and
  • when a third party can participate in arbitral proceedings either claiming or defending ‘through or under’ a party to the arbitration agreement.

Key takeaways

Filed under:
Australia, Arbitration & ADR, Insolvency & Restructuring, Litigation, Herbert Smith Freehills LLP, Singapore International Arbitration Centre
Location:
Australia
Firm:
Herbert Smith Freehills LLP
View Original Article
Hong Kong Court of Appeal provides certainty on bar against reflective loss
2023-05-19

On 21 April 2023, the Hong Kong Court of Appeal (CA) released its judgment Power Securities Co Ltd v Sin Kwok Lam [2023] HKCA 594, which provided certainty on the application of the bar against reflective loss for shareholders.

Background

Filed under:
Hong Kong, Company & Commercial, Insolvency & Restructuring, Litigation, Herbert Smith Freehills LLP, UK Supreme Court
Authors:
Gareth Thomas , Jojo Fan , Peter Ng
Location:
Hong Kong
Firm:
Herbert Smith Freehills LLP
View Original Article
Clearing up the cloud? Perhaps partly, as the Court of Final Appeal affirms the approach to dismissing bankruptcy proceedings in favour of the parties’ agreed forum
2023-05-10

If a debt arises from a contract that contains an exclusive jurisdiction clause (EJC) in favour of a foreign court, how will the Hong Kong court deal with a bankruptcy petition based on that debt? A highly anticipated judgment from Hong Kong’s highest court suggests that the bankruptcy petition will likely be dismissed, and that the foreign EJC will be given effect. But, as we will discuss below, the Court seems to leave other possibilities open, depending on the facts in a particular case.

Filed under:
Hong Kong, Insolvency & Restructuring, Herbert Smith Freehills LLP
Authors:
Gareth Thomas , Alexander Aitken , Jojo Fan , Peter Ng
Location:
Hong Kong
Firm:
Herbert Smith Freehills LLP
View Original Article
Past its peak: the High Court of Australia confirms the abolition of the peak indebtedness rule for unfair preferences
2023-03-07

In the much-anticipated decision of Bryant v Badenoch Integrated Logging Pty Ltd [2023] HCA 2 (Badenoch (HCA)), the High Court of Australia (the HCA) has now confirmed that the peak indebtedness rule may not be used when assessing the quantum of an unfair preference claim arising from a continuing business relationship.

Filed under:
Australia, Insolvency & Restructuring, Litigation, Trade & Customs, Herbert Smith Freehills LLP, Corporations Act 2001 (Australia)
Authors:
Paul Apáthy , Margaret Fong
Location:
Australia
Firm:
Herbert Smith Freehills LLP
View Original Article
Past its peak: the High Court of Australia confirms the abolition of the peak indebtedness rule for unfair preferences
2023-03-07

In the much-anticipated decision of Bryant v Badenoch Integrated Logging Pty Ltd [2023] HCA 2 (Badenoch (HCA)), the High Court of Australia (the HCA) has now confirmed that the peak indebtedness rule may not be used when assessing the quantum of an unfair preference claim arising from a continuing business relationship.

Filed under:
Australia, Insolvency & Restructuring, Litigation, Trade & Customs, Herbert Smith Freehills LLP, Corporations Act 2001 (Australia)
Authors:
Paul Apáthy
Location:
Australia
Firm:
Herbert Smith Freehills LLP
View Original Article
First decision on Australia’s ipso facto stay in voluntary administration
2023-03-01

The Federal Court of Australia (Court) has handed down the first reported decision on the ipso facto stay provisions contained in the Corporations Act 2001 (Cth) (Act).

Filed under:
Australia, Insolvency & Restructuring, Litigation, Herbert Smith Freehills LLP, Corporations Act 2001 (Australia)
Authors:
Paul Apáthy
Location:
Australia
Firm:
Herbert Smith Freehills LLP
View Original Article
Supreme Court decision gives further clarity on claims by distressed companies against directors
2023-03-01

Although not directly concerned with directors' liabilities, the recent Supreme Court judgment in Stanford International Bank Ltd v HSBC Bank PLC provides further clarity on the circumstances in which a distressed or insolvent company may seek to make claims against its directors.

INTRODUCTION

The key aspects affecting directors' liabilities presented in the Supreme Court ruling are that:

Filed under:
United Kingdom, Insolvency & Restructuring, Litigation, Herbert Smith Freehills LLP, Supreme Court of the United States
Authors:
Andrew Cooke
Location:
United Kingdom
Firm:
Herbert Smith Freehills LLP
View Original Article
What the crypto Winter means for insolvency- With distress in crypto hitting headlines, we unpack the key risks and legal issues facing the industry and investors
2022-12-05

There has been no shortage of high-profile insolvencies in the crypto market in recent months across a range of market participants and geographies. These include the US Chapter 11 and Bahamas provisional liquidation of FTX as well as the US Chapter 11 filings of BlockFi, Singapore-based crypto hedge fund ThreeArrows Capital, US-based lenders Celsius Network and Voyager Digital, US-based crypto mining data centre Compute North and German crypto bank Nuri.

Filed under:
United Kingdom, Insolvency & Restructuring, Litigation, Herbert Smith Freehills LLP, Blockchain, Bitcoin, Cryptocurrency, Non-fungible tokens, Financial Conduct Authority (UK)
Authors:
John Chetwood , Andrew Cooke , Philip Lis
Location:
United Kingdom
Firm:
Herbert Smith Freehills LLP
View Original Article
High Court considers contractual construction of irrevocable letter of credit incorporating UCP 600
2022-11-15

In the context of a trade finance dispute, the High Court has considered the contractual interpretation of an irrevocable letter of credit incorporating the commonly used code in the Uniform Customs and Practice for Documentary Credits 600 (UCP 600), published by the International Chamber of Commerce (ICC). In particular, the court held that the issuer’s interpretation of the letter of credit would, in practice, render the instrument revocable, which was inconsistent with the UCP and therefore not the proper construction.

Filed under:
United Kingdom, Banking, Insolvency & Restructuring, Litigation, Herbert Smith Freehills LLP
Authors:
Ceri Morgan
Location:
United Kingdom
Firm:
Herbert Smith Freehills LLP
View Original Article

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