In last month's edition of Middle East Exchange,we looked at the risks for directors of UAE companies in financial difficulties. In this month's edition, we consider the position from the other side of the negotiating table, namely the risks for creditors when a UAE company faces financial difficulties.

In brief

Courts have recently approved a number of means by which external administrators can realise value from insolvent agricultural managed investment schemes and deal with the rights of growers and sponsor creditors:

On 17 September the DWP published a consultation paper (attaching draft regulations) in which it proposes that certain corporate restructurings will not trigger an employer debt under section 75 of the Pensions Act 1995. Following on from amendments introduced by regulations in 2008, the draft regulations also make some technical amendments to the employer debt regime, which are intended to ease its operation in practice.

Section 75: a reminder

In a judgment only recently published via the Building Law Reports,  the High Court has ruled that a winding up procedure applicable to companies should not be used where there is a triable issue as to the validity of an adjudicator’s decision relied on as evidence of a company being unable to pay its debts: Towsey v. Highgrove [2012] EWHC 2644 (Chancery Division).

Background

The Supreme Court handed down its judgment in relation to the client money application in the matter of Lehman Brothers International (Europe) (LBIE). The judgment has a number of implications for firms who hold client money, and for firms who hold money with banks and other firms as clients themselves. The complicated and controversial nature of the appeal is reflected in the sharply opposing opinions of the Lords in relation to two of the three issues considered.

The Singapore High Court has considered for the first time whether an action brought to avoid transactions that allegedly violated insolvency laws should be stayed in favour of arbitration. The court held that such disputes are not suitable for arbitration due to the public interest involved.

There have recently been a number of significant developments in relation to schemes of arrangement. These include:

• the Federal Court refusing to make orders convening a meeting of CSR’s shareholders to vote on a demerger proposal by way of scheme, on public policy and commercial morality grounds relating to CSR’s potential asbestos liabilities
• the Government’s corporate law advisory body recommending significant reforms to the scheme regime, and
• developments regarding ‘hostile schemes’.

Each of these developments is discussed below.

Introduction

By unanimous decision in Bruton Holdings Pty Limited (in liquidation) v Commissioner of Taxation1, five members of the High Court have reversed a controversial decision of the Full Federal Court to confirm that the Commissioner of Taxation (Commissioner) cannot ‘leap-frog’ other creditors in a liquidation.2

In Ambiente Ufficio S.p.A. and others v Argentine Republic, an ICSID tribunal held that it had general jurisdiction over a multi-party claim commenced by 90 distinct Italian nationals against Argentina in respect of harm said to result from Argentina’s default and later partial restructuring of its sovereign debt. It might at first blush appear that the tribunal’s willingness to admit a 90-party claim is an affirmation of the favourable approach to so-called “mass claims” taken by its “sister tribunal” in Abaclat (and others) v The Argentine Republic.

Draft new insolvency law for the UAE - is a big clean-up of delinquent debtors on the way?

It has been widely reported that the new insolvency law in the UAE is substantially progressed, with the UAE Federal Cabinet expected to review it in the early part of this year.