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    Director of insolvent company unable to challenge company’s PAYG liability
    2023-09-28

    In this week’s TGIF, we examine the recent case of Mandalinic v Stone (Liquidator) [2023] FCAFC 146 which provides useful guidance as to the ability of a director to challenge an insolvent company’s PAYG liability.

    Key takeaways

    Filed under:
    Australia, Company & Commercial, Insolvency & Restructuring, Litigation, Corrs Chambers Westgarth
    Authors:
    Michael Kimmins , Daniel Byrne
    Location:
    Australia
    Firm:
    Corrs Chambers Westgarth
    Orienteering Change: Navigating Restructuring Under the New Cayman Islands Regime
    2023-09-29

    A version of this was first published in INSOL I-Read Student Newsletter, Issue 9, September 2023, and is republished with kind permission of INSOL International.

    After a substantial industry consultation process, the Cayman Islands introduced the concept of Court-appointed restructuring officers into Part V of the Cayman Islands Companies Act (the “Companies Act”) with effect from 31 August 2022.

    Filed under:
    Cayman Islands, Insolvency & Restructuring, Litigation, Conyers
    Authors:
    Jordan McErlean
    Location:
    Cayman Islands
    Firm:
    Conyers
    ERGO Analysing Development Impacting Business: IBBI Amends the CIRP Regulations to Streamline the Insolvency Process
    2023-09-29

    Introduction

    The Insolvency and Bankruptcy Board of India (IBBI) on 18 September 2023 notified the Insolvency and Bankruptcy Board of India (Insolvency Resolution Process for Corporate Persons) (Second Amendment) Regulations, 2023 (CIRP Amendment Regulations) amending the Insolvency and Bankruptcy Board of India (Insolvency Resolution Process for Corporate Persons) Regulations, 2016 (CIRP Regulations).

    The key changes brought about by the CIRP Amendment Regulations are as follows:

    Filed under:
    India, Insolvency & Restructuring, Litigation, Khaitan & Co, Insolvency and Bankruptcy Board of India, Insolvency and Bankruptcy Code (India)
    Authors:
    Siddharth Srivastava , Mohit Kishore , Shikha Mohini
    Location:
    India
    Firm:
    Khaitan & Co
    Challenging Times Ahead for Brazilian Companies and Investors
    2023-09-25

    Following several years of declining recuperações judiciais filings in Brazil, nearly 600 companies requested court protection in the first six months of 2023, a 52% increase over the same period in 2022.

    Total filings remain below the number seen between 2016-2018, when Brazil went through one of its worst economic crises. However, there is a clear separation from the lower number of filings during the pandemic years of 2020-2022, when there was an increase in government support and creditors were more patient.

    Filed under:
    Brazil, Company & Commercial, Corporate Finance/M&A, Insolvency & Restructuring, AlixPartners LLP, Corporate governance, Due diligence
    Authors:
    Chris Sanchez , Brad Hunter
    Location:
    Brazil
    Firm:
    AlixPartners LLP
    The recognition of foreign bankruptcy decrees in Switzerland
    2023-09-25

    For a foreign decree to be recognisable in Switzerland, it is according to the Swiss International Private Law Act, required that the foreign bankruptcy decree is enforceable in the state where it was issued, and there must not be any grounds for refusing recognition, e.g. a violation of Swiss public policy. Furthermore, the decision must have been issued either in the state where the debtor has its seat or domicile or in the state where the debtor has its centre of main interests.

    Filed under:
    Switzerland, Insolvency & Restructuring, Loyens & Loeff
    Authors:
    Robin Moser , Judith Raijmakers , Stéphanie Szedlák (née Hagmann)
    Location:
    Switzerland
    Firm:
    Loyens & Loeff
    Bankruptcy overturned - can I have my money back please?
    2023-09-25

    Where a bankruptcy order is set aside after a successful appeal by the debtor, who should be liable for the fees and expenses of the trustees in bankruptcy (whether the Official Receiver (as provisional trustee) or trustees appointed by the creditors)? Should such fees and expenses be borne by the bankruptcy estate, or should the unsuccessful petitioner bear those costs on the basis the bankruptcy order ought not to have been made in the first place?

    Filed under:
    Hong Kong, Insolvency & Restructuring, Litigation, Tanner De Witt, Court of Final Appeal (Hong Kong)
    Authors:
    Robin Darton , Tim Au
    Location:
    Hong Kong
    Firm:
    Tanner De Witt
    Kenneth M. Krys as Liquidator of Fairfield Sentry Limited (in liquidation) v Farnum Place BVIHCVAP2013/0014
    2023-09-25

    The Court of Appeal has given valuable and clear guidance on the circumstances in which applications during an ongoing liquidation may constitute ‘final decisions’ for the purpose of bringing appeals to His Majesty in Council pursuant to the Virgin Islands (Appeals to Privy Council) Order 1967 ( the “1967 Order”). The issue can be an important one in practice – final decisions only require formal or procedural permission to appeal, whereas non-final decisions require substantive permission, based on merit or public importance.

    Filed under:
    United Kingdom, Insolvency & Restructuring, Litigation, Conyers
    Authors:
    Allana-J Joseph , Richard Evans
    Location:
    United Kingdom
    Firm:
    Conyers
    Exploring the Limits of Contractual Discretion - Court Considers Discretion to Withdraw Banking Facilities in Winding Up Application
    2023-09-26

    Introduction

    In commercial contracts, it is not uncommon to find provisions allowing for contractual discretion on the part of one or more parties, such as the discretion to vary certain interest or payment terms, to choose a port of delivery, or an option to purchase. While such provisions give a certain amount of decision-making power to the party that has been conferred the discretion, they are not without limit. These limits were explored in the Singapore High Court decision of Maybank Singapore Ltd v Synergy Global Resources Pte Ltd [2023] SGHC 258.

    Filed under:
    Singapore, Banking, Insolvency & Restructuring, Litigation, Rajah & Tann Asia, Winding-up, Insolvency, Singapore High Court
    Authors:
    Cherie Tan
    Location:
    Singapore
    Firm:
    Rajah & Tann Asia
    Till Interest Rate For A Bankruptcy Plan: Start With Treasury Rate or Prime Rate? (In re Topp)
    2023-09-26

    What rate of interest should a debtor pay under a bankruptcy plan?

    Filed under:
    USA, Nebraska, Insolvency & Restructuring, Litigation, Koley Jessen PC
    Authors:
    Donald L. Swanson
    Location:
    USA
    Firm:
    Koley Jessen PC
    What is the general discretion of the court regarding the sanctioning of English restructuring plans?
    2023-09-26

    Even if the statutory conditions for cramming down the votes of dissenting creditors has been met, the court retains a discretion to consider other factors

    Certain statutory conditions need to be met in order for the court to sanction a plan at least one class of creditors or members has not voted in favour of the plan by the requisite majority (being 75% in value of those present and voting) – referred to as the "cross-class cram down".

    Filed under:
    United Kingdom, Insolvency & Restructuring, Litigation, Tax, Osborne Clarke, HM Revenue and Customs (UK), Companies Act 2006 (UK)
    Authors:
    Sam Furse , Douglas Hawthorn
    Location:
    United Kingdom
    Firm:
    Osborne Clarke

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