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    DWP consults on changes to Section 75: certain corporate restructurings will not trigger an employer debt
    2009-10-21

    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

    Filed under:
    United Kingdom, Employee Benefits & Pensions, Insolvency & Restructuring, Herbert Smith Freehills LLP, Debt, Liability (financial accounting), Easement, Defined benefit pension plan, Buyout, The Pensions Regulator (UK), Department for Work and Pensions (UK), Transfer of Undertakings (Protection of Employment) Regulations 2006 (UK), Pensions Act 1995 (UK), Trustee
    Authors:
    Ian Gault , Alison Brown , Roderick Morton
    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), London Court of International Arbitration
    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), London Court of International Arbitration
    Location:
    United Kingdom
    Firm:
    Herbert Smith Freehills LLP
    LBIE Administrators announce contractual alternative to proposed Scheme of Arrangement
    2009-10-06

    The Joint Administrators (the “Administrators”) of Lehman Brothers International (Europe) (“LBIE”) announced on Oct. 5, 2009, that they are developing a contractual (i.e., non-judicial) alternative to their proposed Scheme of Arrangement, which is the subject of an appeal following a decision by the High Court in London that it lacks jurisdiction to implement the scheme.

    The Prior Proposed Scheme of Arrangement

    Filed under:
    United Kingdom, Insolvency & Restructuring, Litigation, Schulte Roth & Zabel LLP, Contractual term, Lehman Brothers, High Court of Justice (England & Wales)
    Location:
    United Kingdom
    Firm:
    Schulte Roth & Zabel LLP
    Asset transfers between spouses - pitfalls
    2009-10-06

    When a company becomes insolvent (as many have in the last year or so) one effect is that its shares will normally have nil or negligible value and the holder of the shares will therefore normally show a ‘book loss’ on them. Such losses can be relieved against taxable gains in certain circumstances.

    Filed under:
    United Kingdom, Insolvency & Restructuring, Private Client & Offshore Services, Tax, DMH Stallard LLP, Share (finance), Capital gains tax, Civil partnership in the United Kingdom
    Location:
    United Kingdom
    Firm:
    DMH Stallard LLP
    Breach of fiduciary duty by not paying VAT
    2009-10-07

    The High Court in England has made an interesting decision in the case of ED Games Limited. A director of that company procured that it did not pay VAT for a period prior to its liquidation and in that period, the net deficit on the company's balance sheet increased. The High Court has held that the director could be held personally liable for the increase in such net deficit.

    Filed under:
    United Kingdom, Insolvency & Restructuring, Litigation, Tax, MacRoberts LLP, Breach of contract, Fiduciary, Value added tax, Liquidation, Balance sheet, Liquidator (law), HM Revenue and Customs (UK), Insolvency Act 1986 (UK)
    Authors:
    Alan Meek , Leon Breakey
    Location:
    United Kingdom
    Firm:
    MacRoberts LLP
    The anti-deprivation principle and an Atlantic divide
    2009-09-23

    Structured finance transactions frequently subordinate a swap counterparty’s rights to termination payments upon termination of a swap by reason of counterparty default. Such a provision has recently been upheld by an English court. As the case concerns the insolvency of Lehman Brothers however, the US courts must also make a decision on the same provision.  

    Filed under:
    United Kingdom, USA, Derivatives, Insolvency & Restructuring, Litigation, Securitization & Structured Finance, McDermott Will & Emery, Bankruptcy, Collateral (finance), Security (finance), Swap (finance), Debt, Default (finance), Yield (finance), Lehman Brothers, High Court of Justice (England & Wales)
    Authors:
    Kate Lamburn
    Location:
    United Kingdom, USA
    Firm:
    McDermott Will & Emery
    What does the IMO Car Wash court decision mean for creditors?
    2009-09-24

    In August 2009, an English court sanctioned the use of a scheme of arrangement to restructure the debt of IMO Car Wash Group, a highly leveraged UK based car wash company. This decision follows the similar use of schemes of arrangements in other restructurings. For example earlier this year an English court sanctioned the use of a scheme in the debt restructuring of McCarthy & Stone. In both of these restructurings, the subordinated creditors were left with no value for their debt claims.

    Filed under:
    United Kingdom, Insolvency & Restructuring, Litigation, Fried Frank Harris Shriver & Jacobson LLP, Shareholder, Interest, Debt, Liability (financial accounting), Default (finance), Leverage (finance), Debt restructuring, Warrant (finance), Secured loan
    Authors:
    Timothy E. Peterson , Rob McBride , Askan Denstaedt , Jennifer Kafcas
    Location:
    United Kingdom
    Firm:
    Fried Frank Harris Shriver & Jacobson LLP
    What does the IMO Car Wash court decision mean for creditors
    2009-09-24

    In August 2009, an English court sanctioned the use of a scheme of arrangement to restructure the debt of IMO Car Wash Group, a highly leveraged UK based car wash company. This decision follows the similar use of schemes of arrangements in other restructurings. For example earlier this year an English court sanctioned the use of a scheme in the debt restructuring of McCarthy & Stone. In both of these restructurings, the subordinated creditors were left with no value for their debt claims.

    Filed under:
    United Kingdom, Insolvency & Restructuring, Fried Frank Harris Shriver & Jacobson LLP, Shareholder, Interest, Debt, Liability (financial accounting), Default (finance), Leverage (finance), Debt restructuring, Warrant (finance), Secured loan, Companies Act 2006 (UK)
    Authors:
    Timothy E. Peterson , Rob McBride , Askan Denstaedt , Jennifer Kafcas
    Location:
    United Kingdom
    Firm:
    Fried Frank Harris Shriver & Jacobson LLP
    Full and final release? Accepting surrenders from administrators
    2009-09-24

    Summary and implications

    Now, more than at any other time of this economic cycle, landlords are faced with the prospect of dealing with tenants who have entered one of the various stages of insolvency and require straightforward solutions to bring their tenancy to an end. Often landlords wish to;

    Filed under:
    United Kingdom, Insolvency & Restructuring, Real Estate, Nabarro LLP, Share (finance), Landlord, Leasehold estate, Covenant (law), Consideration, Deed, Adoption, Liquidation
    Location:
    United Kingdom
    Firm:
    Nabarro LLP

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