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    Significant developments in schemes
    2010-02-17

    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.

    Filed under:
    Australia, Insolvency & Restructuring, Herbert Smith Freehills LLP, Shareholder, Interest, Liability (financial accounting), Due diligence, Voting, Federal Court of Australia
    Authors:
    Andrew Rich
    Location:
    Australia
    Firm:
    Herbert Smith Freehills LLP
    Bruton Holdings – ATO has no power to garnishee debt after commencement of winding up
    2009-10-07

    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

    Filed under:
    Australia, Insolvency & Restructuring, Litigation, Tax, Herbert Smith Freehills LLP, Debt, Liability (financial accounting), Liquidation, Liquidator (law), Corporations Act 2001 (Australia), Australian Taxation Office, High Court of Justice, Federal Court of Australia, High Court of Australia
    Authors:
    Paul Wenk
    Location:
    Australia
    Firm:
    Herbert Smith Freehills LLP
    Ambiente Ufficio S.p.A. and others v Argentine Republic (ICSID Case No ARB/08/9)
    2013-02-20

    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.

    Filed under:
    Argentina, Global, Arbitration & ADR, Insolvency & Restructuring, Public, Trade & Customs, Herbert Smith Freehills LLP, Default (finance)
    Authors:
    Paula Hodges QC , Charles Kaplan , Peter Godwin
    Location:
    Argentina, Global
    Firm:
    Herbert Smith Freehills LLP
    Middle East exchange
    2012-02-14

    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.

    Filed under:
    Saudi Arabia, United Arab Emirates, Capital Markets, Insolvency & Restructuring, Litigation, Herbert Smith Freehills LLP, Bankruptcy, Debtor
    Location:
    Saudi Arabia, United Arab Emirates
    Firm:
    Herbert Smith Freehills LLP
    FSD determination affecting Lehman Brothers scheme
    2010-09-30

    On 17 September, the Pension Regulator's Determinations Panel announced that it had issued a determination that six companies within the Lehman Brothers group (including the group's main operating companies in the UK as well as the US parent Lehman Brothers Holding Inc.) should provide financial support to the Lehman Brothers Pension Scheme. This followed a hearing on 8-9 September 2010.

    Filed under:
    United Kingdom, Employee Benefits & Pensions, Insolvency & Restructuring, Litigation, Herbert Smith Freehills LLP, Joint and several liability, Defined benefit pension plan, Subsidiary, Pensions Act 2004 (UK), Lehman Brothers
    Authors:
    Ian Gault , Daniel Schaffer , Alison Brown , Roderick Morton
    Location:
    United Kingdom
    Firm:
    Herbert Smith Freehills LLP
    Managing director of Alta Gas Plc ordered to pay £1 million for fraud
    2010-02-16

    The SFO has announced that managing director and shareholder of Alta Gas Plc, Peter Brian Bradley, has been ordered to pay £1 million compensation to victims following confiscation proceedings on 26 January 2010. In 2001, Alta Gas Plc went into administrative receivership which resulted in the receivers of the company discovering a sophisticated system of false accounts that enhanced the profitability of the company.

    Filed under:
    United Kingdom, Insolvency & Restructuring, White Collar Crime, Herbert Smith Freehills LLP, Shareholder, Fraud, Public limited company, Chief executive officer
    Location:
    United Kingdom
    Firm:
    Herbert Smith Freehills LLP
    Court of Appeal determines effect of party's insolvency in one EU jurisdiction on arbitral proceedings in another
    2009-10-05

    Background

    Article 4.1 of Council Regulation (EU) No 1346/2000 of 29 May 2000 on Insolvency Proceedings (the "Regulation") states: "Save as otherwise provided in this Regulation, the law applicable to insolvency proceedings and their effects shall be that of the Member State within the territory of which such proceedings are opened..."

    Article 4.2 of the Regulation sets out a non-exhaustive list of the matters which the law of the state of the opening of insolvency proceedings is to determine, including:

    Filed under:
    United Kingdom, Arbitration & ADR, Insolvency & Restructuring, Litigation, Herbert Smith Freehills LLP, Bankruptcy, Debtor, Breach of contract, Arbitration clause, In rem jurisdiction, Arbitration Act 1996 (UK)
    Location:
    United Kingdom
    Firm:
    Herbert Smith Freehills LLP
    Hong Kong Court refused to wind up a foreign company as liquidators would not have any power over offshore subsidiaries
    2022-01-13

    In Re Grand Peace Group Holdings Limited [2021] HKCFI 2361, the Hong Kong Court refused to exercise its discretionary jurisdiction to wind up an offshore holding company due to difficulties in the recognition of Hong Kong liquidators in the BVI.

    Background

    Filed under:
    Hong Kong, Insolvency & Restructuring, Litigation, Herbert Smith Freehills LLP
    Authors:
    Gareth Thomas , Alexander Aitken , Jojo Fan , Peter Ng
    Location:
    Hong Kong
    Firm:
    Herbert Smith Freehills LLP
    Two bites of the cherry? Res judicata and abuse of process
    2021-06-11

    On 1 June 2021, the Hong Kong Court of First Instance handed down another lengthy Judgment in the long-running dispute among certain members of the prominent Lo family.

    Filed under:
    Hong Kong, Insolvency & Restructuring, Litigation, Herbert Smith Freehills LLP, HSBC
    Authors:
    Gareth Thomas , Peter Ng
    Location:
    Hong Kong
    Firm:
    Herbert Smith Freehills LLP
    Cross-border insolvencies in the UK and the EU - a quick guide
    2021-02-04

    At 11pm on 31 December 2020, the UK left the European single market at the end of the transition period agreed as part of the 2019 Withdrawal Agreement. The EU-UK Trade and Cooperation Agreement that was reached on Christmas Eve made no provision for continued recognition of, or co-operation in, insolvency and restructuring proceedings. This briefing considers the implications of this and we examine how:

    Filed under:
    European Union, United Kingdom, Insolvency & Restructuring, Herbert Smith Freehills LLP, UNCITRAL
    Authors:
    John Whiteoak , Kevin Pullen , John Chetwood
    Location:
    European Union, United Kingdom
    Firm:
    Herbert Smith Freehills LLP

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