The Companies Act 2014 (the "Act") was recently passed by the Irish parliament and is expected to be brought into force on 1 June 2015 (the "Commencement Date").  The Act is largely a consolidation and modernisation exercise. 

However, there are a number of significant areas which modify existing companies legislation and which lenders will need to consider both in the run-up to the Commencement Date and afterwards.  In particular these relate to:

With the current financial difficulties faced by the oil & gas industry, directors of companies incorporated in England and Wales must be mindful of their duties and responsibilities to the company as well as the potential personal liability that could arise from breaching those duties and responsibilities in the context of an insolvency.

Who qualifies as a director?

The High Court has found two former directors of a car dealership in Dublin, Appleyard Motors Limited (In Liquidation) (Appleyard), personally liable to a former customer who paid for but did not receive three vehicles in the weeks leading up to the company’s liquidation. This case is particularly noteworthy as it is only the second time a director has been held personally liable for a company’s debts for reckless trading.

On 13 May 2015, the Government announced that it intends to give the courts the power to overrule the rejection by secured creditors of arrangements under the Personal Insolvency Act 2012 (the “Act”).

There is scant detail in the announcement save that it is intended to “support mortgage holders who are in arrears” and that legislation is to be brought forward before the Summer recess. How is such legislation likely to work and what potential frailties could it have?

The Issue

The recent decision of the Supreme Court in the case of In the matter of Sean Dunne (a bankrupt) has confirmed that it is possible for a debtor to be adjudicated a bankrupt under the laws of Ireland notwithstanding the fact that the debtor has already been adjudicated a bankrupt in another jurisdiction which is not subject to the European Insolvency Regulation.

Summary

The Department of Justice and Equality has announced that the Government is to introduce legislation before the summer recess giving Courts the power to review and, where appropriate, approve insolvency deals that have been rejected by banks. This process will represent a reform of the Personal Insolvency framework and "seeks to ensure that fair and sustainable deals are upheld for struggling borrowers willing to work their way out of difficulties with a view to keeping their family home."

In a number of recent cases, borrowers have produced a detailed forensic analysis of the accrual of interest on their accounts by lenders alleging that any error in the calculation of interest invalidates the demand made by the lender and any appointment of a receiver on foot thereof.

Introduction

The State Airports (Shannon Group) Act 2014 (the “Act”) was signed into law on 27 July 2014.  The Act is further evidence of the Irish government’s commitment to the aviation finance and leasing sector and further bolsters Ireland’s position as a centre of excellence in aviation.

Judgment by Cregan J of 6 October 2014

Overview

This case concerned an application by the official liquidator of RQB Limited (in liquidation) (the Company) pursuant to S280 of Companies Act 1963 to determine the legal status of a floating charge dated 10 September 2008 which entered into by the Company in favour of Danske Bank (the Bank) and which the liquidator believes to be unenforceable.

Background

The "2005 Facility"

简介

    爱尔兰是飞机融资和租赁结构的核心所在地，也是许多国际顶级飞机和发动机出租人的总部所在地。除了极具吸引力的税收政策，高素质和经验丰富的航空专业人才以及作为一个司法管辖区的其他许多优势外，很多中国的租赁公司和航空公司优先考虑选择爱尔兰作为其飞机融资和租赁管辖结构交易架构的司法管辖地是因为在爱尔兰设立公司非常简便且成本经济，并且拥有对债权人友好的法制环境。采用爱尔兰结构有利于吸引低成本融资，并且公司还可以受益于爱尔兰优秀的避免双重征税条约体系。通常，融资和租赁交易使用新成立的爱尔兰公司构建交易结构，这种公司一般称为特殊目的工具（SPV）或特殊目的公司（SPC）。

什么是 SPV？