Beware of Demand Letters

An immediate concern for any company is a threat to present a winding up petition made in an email or letter – regardless of the size of debt, whether the debt is disputed or the company has a counterclaim.

The consequences of ignoring such a threat can have an immediate and adverse impact on a business. Failure to respond can be used as evidence that the company is unable to pay and that can be used as evidence to support presentation of a winding up petition.

What is the practical application of the "Pre-Pack" procedure?

The "Pre-Pack" procedure is an option available to a company facing a severe financial situation, but still possesses a profitable business or at least some assets.

Zoals reeds vermeld in ons vorig artikel in deze materie, is het concept van de overdracht van een onderneming één van de pijlers van de hervorming van het insolventierecht in België.

U maakte reeds kennis met het concept van de overdracht van ondernemingen onder gerechtelijk gezag, dat herzien is sinds de hervorming van 1 september 2023.

Deze bijdrage vormt het tweede deel van dit onderwerp, ditmaal over de overdracht van een onderneming in het kader van een "besloten voorbereiding van een faillissement".

As already mentioned in our previous article on this subject, the concept of the transfer of a business is one of the pillars of the reform of insolvency law in Belgium.

In our previous article regarding this subject, we introduced the concept of the transfer of a business under judicial authority, reviewed since the reform as of 1 September 2023.

This contribution constitutes the second part of the subject, and deals with the transfer of a business in the context of a private (confidential) preparation prior to bankruptcy.

Background

The claimant, Alun Griffiths (Contractors) Limited, sought judgment for £3,316,487.55 to enforce an adjudicator's decision in its favour against Carmarthenshire County Council.

This judgment reinforces the Court’s power to order a judgment debtor to draw down their pension for the benefit of the creditors as recently seen in Bacci v Green.

Summary

The recent judgment handed down by the High Court in Manolete v White [2023] EWHC 567 (Ch) reinforces the Court’s power to order a judgment debtor to exercise a right to draw down on their pension for the benefit of creditors as recently seen in Bacci v Green.

The Facts

INTRODUCTION Within German contract law, the principle of being bound by a contract (pacta sunt servanda) (i.e., the obligation to fulfill an agreement) applies. However, in the case of the insolvency of one of the contract parties, exceptions are made. Upon the opening of insolvency proceedings, the principle of being bound by a contract is modified. The insolvency provisions concerning the fulfillment of mutual contracts (Section 103 et seqq.

In a recent decision, the NCLAT in the case of Beetel Teletech Ltd. v. Arcelia IT Services Private Limited made 2 (two) relevant findings on the maintainability of applications under Insolvency and Bankruptcy Code, 2016 (“IBC”):

THE BRIEF

FINANCIAL SERVICES LITIGATION QUARTERLY

FALL 2023

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TABLE OF CONTENTS

Were There Underwriting Requirements for PPP Loans After All? The Sound-Value Requirement May Pose Risk for PPP Lenders

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Noteworthy10

District Court Upholds New ERISA Rules on ESG Investing

10

Fourth Circuit Holds That Class-Action Waivers Must Be Addressed Before Class Certification

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Ninth Circuit: Fees for Claims-Made Settlements Must Be Based on Actual Recovery

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In brief

A selection of newly announced legislation and court decisions reinterpreting private law.

Contents