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    General counsel update: 31 May 2012
    2012-05-31

    This is the twenty-ninth in our series of General Counsel Updates which aim to summarise major developments in key areas.

    Filed under:
    Argentina, China, European Union, Hong Kong, Singapore, Spain, United Kingdom, Arbitration & ADR, Aviation, Banking, Capital Markets, Company & Commercial, Competition & Antitrust, Copyrights, Employee Benefits & Pensions, Energy & Natural Resources, Environment & Climate Change, Insolvency & Restructuring, Insurance, Internet & Social Media, Litigation, Media & Entertainment, Projects & Procurement, Real Estate, Trademarks, White Collar Crime, Herbert Smith Freehills LLP
    Location:
    Argentina, China, European Union, Hong Kong, Singapore, Spain, United Kingdom
    Firm:
    Herbert Smith Freehills LLP
    Guilty but unaware? Potential criminal and civil sanctions in the UAE against directors of companies in financial difficulties
    2010-11-16

    In our October 2010 edition of Middle East Exchange, we looked at the general duties which directors and managers of UAE companies owe to their companies and their shareholders. In this edition, we consider the position where the company's financial position deteriorates. As directors or managers struggle with the inevitable commercial and operational pressures, what additional legal responsibilities and potential liabilities does UAE law place upon them?

    Filed under:
    United Arab Emirates, Company & Commercial, Insolvency & Restructuring, Herbert Smith Freehills LLP, Conflict of interest, Bankruptcy, Shareholder, Board of directors, Market liquidity, Liability (financial accounting), Good faith, Cashflow, Articles of association, Annual general meeting
    Location:
    United Arab Emirates
    Firm:
    Herbert Smith Freehills LLP
    Scottish courts consider insurance solvent schemes
    2010-03-02

    Under Part 26 of the Companies Act 2006, it is open to a solvent company to enter into an arrangement or compromise with its creditors or members. Over the past 10-15 years such solvent schemes have been implemented in M&A and restructuring transactions and have proved increasingly popular in the insurance market, permitting insurers to crystallise their contingent liabilities.

    Filed under:
    United Kingdom, Scotland, Insolvency & Restructuring, Insurance, Litigation, Herbert Smith Freehills LLP, Consent, Liability (financial accounting), Dissenting opinion, Precondition, Companies Act 2006 (UK), Court of Session
    Location:
    United Kingdom
    Firm:
    Herbert Smith Freehills LLP
    Solicitors and advisors to face liability for directors’ breach
    2009-11-13

    Introduction

    The New South Wales Supreme Court has found a solicitor liable for facilitating unlawful ‘phoenix’ activity.1 Phoenix activity consists of transferring business assets out of an old debt-laden company (which subsequently goes into liquidation) to a new debt free company. The new company carries on the business of the old company; but the assets are put beyond the reach of the creditors of the old company.

    Filed under:
    Australia, Insolvency & Restructuring, Litigation, Herbert Smith Freehills LLP, Share (finance), Breach of contract, Dividends, Debt, Liability (financial accounting), Liquidation, Good faith, Unsecured creditor, Corporations Act 2001 (Australia)
    Location:
    Australia
    Firm:
    Herbert Smith Freehills LLP
    Court's jurisdiction to make orders under Section 221 of the Companies Ordinance confirmed
    2007-01-15

    Hong Kong's highest court has recently considered the extent of the court's sweeping jurisdiction under section 221 of the Companies Ordinance, which enables it (amongst other things) to compel companies in liquidation to produce documents and for individuals to be examined on oath. The case will be welcomed by liquidators given that the court unanimously confirmed that it has jurisdiction to make such orders under this "extraordinary" section.

    Filed under:
    Hong Kong, Company & Commercial, Insolvency & Restructuring, Litigation, Herbert Smith Freehills LLP, Public consultations, Legal burden of proof, Witness, Liquidation, Involuntary dismissal, Subpoena, Liquidator (law), Subsidiary, Court of Final Appeal (Hong Kong)
    Location:
    Hong Kong
    Firm:
    Herbert Smith Freehills LLP
    Further clarification of the Hong Kong courts' jurisdiction to wind up unregistered overseas companies
    2013-03-21

    In a judgment handed down on 6 March 2013, the Hong Kong High Court elaborated on the guiding principles the court will follow when determining whether or not it should exercise its 'exorbitant' jurisdiction to wind up an unregistered overseas company 'which prima facie is beyond the limits of territoriality'.

    Filed under:
    Hong Kong, Insolvency & Restructuring, Litigation, Herbert Smith Freehills LLP, Liquidation
    Authors:
    Gareth Thomas
    Location:
    Hong Kong
    Firm:
    Herbert Smith Freehills LLP
    Court of Appeal provides clarity on payment obligations owed to insolvent counterparties
    2012-04-03

    In a keenly anticipated judgment, the Court of Appeal today handed down its verdict in four appeals1 concerning the interpretation of various terms of the 1992 ISDA Master Agreement.

    Filed under:
    United Kingdom, Derivatives, Insolvency & Restructuring, Litigation, Herbert Smith Freehills LLP, Court of Appeal of England & Wales
    Authors:
    Damien Byrne Hill , Ralph Sellar
    Location:
    United Kingdom
    Firm:
    Herbert Smith Freehills LLP
    Non-disclosure of corporate re-organisation and breach of warranty (again)
    2010-11-10

    By a judgment handed down on 26 October 2010 in Sugar Hut Group Ltd & Ors v Great Lakes Reinsurance (UK) Plc & Ors [2010] EWHC 2636 (Comm), Mr Justice Burton in the Commercial Court held that insurers were entitled to avoid, for a material non-disclosure of a corporate re-organisation, a policy which could otherwise have covered losses arising from a fire at the premises of the insureds.

    Filed under:
    United Kingdom, Insolvency & Restructuring, Insurance, Litigation, Herbert Smith Freehills LLP, Shareholder, Breach of contract, Reinsurance, Public limited company, Non-disclosure agreement, Warranty, Underwriting, Subsidiary, High Court of Justice, Commercial Court (England and Wales)
    Authors:
    Alexander Oddy
    Location:
    United Kingdom
    Firm:
    Herbert Smith Freehills LLP
    Court of Appeal holds that anti-deprivation principle does not apply to provisions relating to the termination of an IP licence on insolvency
    2010-03-02

    The anti-deprivation principle provides that “there cannot be a valid contract that a man’s property shall remain his until his bankruptcy, and, on the happening of that event, go over to someone else, and be taken away from his creditors”.

    Filed under:
    United Kingdom, Insolvency & Restructuring, Intellectual Property, Litigation, Herbert Smith Freehills LLP, Share (finance), Bankruptcy, Breach of contract, Interest, Joint venture, Court of Appeal of England & Wales
    Location:
    United Kingdom
    Firm:
    Herbert Smith Freehills LLP
    Application to pre-pack administrations
    2009-11-02

    In August we reported that the Court of Appeal had expressed doubts as to whether the EAT in Oakland v Wellswood was right to suggest that pre-pack administrations could be insolvencies "begun with a view to liquidation" (so that TUPE does not apply to transfer employees).

    Filed under:
    United Kingdom, Employment & Labor, Insolvency & Restructuring, Litigation, Herbert Smith Freehills LLP, Liquidation, Transfer of Undertakings (Protection of Employment) Regulations 2006 (UK)
    Authors:
    Andrew Brown , Anna Henderson , Peter Frost , Andrew Taggart , Tim Leaver , Jemima Coleman
    Location:
    United Kingdom
    Firm:
    Herbert Smith Freehills LLP

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