Wi­der­le­gung der Ver­mu­tung ei­ner ein­ge­tre­te­nen Zah­lungs­un­fä­hig­keit durch Ein­ho­lung ei­nes Sach­ver­stän­di­gen­gut­ach­tens (BGH, Be­schluss vom 12. Sep­tem­ber 2019 – IX ZR 342/18)

Ein kürz­lich er­gan­ge­ner Be­schluss des BGH setzt sich mit der Fra­ge aus­ein­an­der, wie der An­fech­tungs­geg­ner der An­nah­me der Zah­lungs­un­fä­hig­keit des Schuld­ners im Pro­zess ent­ge­gen­tre­ten kann.

In In re 1141 Realty Owner LLC, et al., No. 18-12341 (SMB), 2019 WL 1270818 (Bankr. S.D.N.Y. March 18, 2019), Bankruptcy Judge Stuart M. Bernstein of the U.S. Bankruptcy Court of the Southern District of New York recently reaffirmed that upon sufficient contractual language, "make whole" prepayment premiums are enforceable under New York law even after loan acceleration. The court emphasized that the language of the contract provided for such a result and that this was an enforceable liquidated damages clause under New York law.

In 2016, the insolvency and bankruptcy landscape in India was radically overhauled by the introduction of the new Insolvency and Bankruptcy Code (IBC). In addition to consolidating the complex set of existing laws and regulations on insolvency and bankruptcy into a single law, the IBC introduced time bound and creditor driven resolution process for distressed companies overseen by the newly formed National Company Law Tribunal (NCLT).

On 8 February 2018, the Hong Kong Court of First Instance (the “Hong Kong Court“) ruled that the common law power to recognise and assist foreign insolvency proceedings extends to voluntary liquidations – this is the first authority on this issue in Hong Kong.

Case: IN THE MATTER of an application for recognition and assistance by the Joint Liquidators of Supreme Tycoon Limited (in liquidation in the British Virgin Islands) [2018] HKCFI 277

In Re Lehman Brothers Europe Ltd (in administration) [2017] EWHC 2031 (Ch) a proposal by joint administrators to appoint a director to a company already in administration (LBEL), in order to distribute surplus funds to its sole member (Lehman Brothers Holdings plc (LBH)), as opposed to a creditor, was held to be legally permissible, as well as pragmatic and beneficial.

Expect the unexpected: The year ahead for the Financial Institutions Sector 1 Expect the unexpected: The year ahead for the Financial Institutions Sector 1 2 Hogan Lovells Expect the unexpected: The year ahead for the Financial Institutions Sector January 2017 3 Introduction 4 Rachel Kent and Emily Reid At a glance: Calendar of key events 6 Year ahead: Key features 8 FinTech: The future is now 10 PSD2: Getting ahead of the competition?

On Wednesday, the Court of Final Appeal ("CFA") reversed the lower courts' decision in the Yung Kee case¹ , holding that the Hong Kong court has jurisdiction to order the winding up of Yung Kee Holdings Limited (the "Company"), a holding company incorporated in the British Virgin Islands and not registered in Hong Kong.

The advent of the new Companies Act 71 of 2008 (the Act) brought with it a shift from a creditor-protectionist society towards a business rescue model that is debtor-protectionist. In consequence, there has been a swarm of applications taking advantage and exploiting this new scheme. This shift has unfortunately led to considerable abuse of the business rescue procedure.

Pension Protection Fund: valuation assumptions

The PPF has consulted on changing the assumptions used for section 143 valuations (used for schemes  in assessment periods) and section 179 valuations (used when setting a scheme's risk-based levy).   The PPF expects that the proposed changes would increase section 143 and section 179 liabilities by  just under 4% and would potentially lead to a small increase in the number of schemes transferring  to the PPF.

Pension Protection Fund: insolvency risk provider

In related Nortel and Lehman Brothers cases, the UK Supreme Court ruled in July that Financial Support Directions ("FSDs") and Contribution Notices ("CNs") under the Pensions Act 2004 rank as provable debts if issued against insolvent targets.

Overturning the decisions of Mr Justice Briggs and the Court of Appeal, the Supreme Court has ruled that such FSD or CN liabilities are not administration or liquidation expenses. It has also confirmed that they do not rank behind other provable debts (the option which had become known as the 'black hole').