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    Subchapter V Trustee’s Facilitation Role (Part 3)—A BANKRUPTCY MODEL
    2023-08-22

    “(b) Duties.—The [Subchapter V] trustee shall— . . . (7)facilitatethe development of a consensual plan of reorganization.”

    • From 11 U.S.C § 1183(b)(7)(emphasis added).

    Facilitation is, by statute, a duty of every Subchapter V trustee—something a Subchapter V trustee must do. But the nature and boundaries of the facilitation role have always been fuzzy and, therefore, misunderstood.

    My purpose in this multi-part series is to provide observations on the facilitation role.

    Filed under:
    USA, Nebraska, Insolvency & Restructuring, Litigation, Koley Jessen PC
    Authors:
    Donald L. Swanson
    Location:
    USA
    Firm:
    Koley Jessen PC
    Bounce Back Loan Schemes, Time to Pay arrangements, and redundancy payment claims: the impact on SMEs
    2023-08-22

    The increasing rates of insolvencies in Small and Medium Enterprises (SMEs) following the COVID-19 pandemic is continuing at a high rate, and England and Wales have seen the highest rates of insolvencies since 2009. Compared with the second quarter of 2022, the total of registered company insolvencies has increased by 13%. Compared with the first quarter of 2023, the rate of insolvencies has increased by 9%.

    Filed under:
    United Kingdom, Insolvency & Restructuring, Tax, Keystone Law, Coronavirus, Insolvency, HM Revenue and Customs (UK), Insolvency Service (UK)
    Authors:
    Aman Sehgal
    Location:
    United Kingdom
    Firm:
    Keystone Law
    破产程序中表决权限制问题初探
    2023-08-22

    前言

    《中华人民共和国企业破产法》(“《破产法》”)在公平清理债权债务、维护社会经济秩序等方面起到了重要的作用。但《破产法》下限制表决权的条款也因缺乏统一具体的适用标准——尤其是庭外程序表决效力的延伸、职工债权人和出资人表决权规范缺失等——而导致问题层出不穷,本文拟探其详并予建议。

    一、破产表决权限制条款的适用问题

    (一)禁反言规则在破产程序中的适用

    《全国法院民商事审判工作会议纪要》(以下简称“《九民纪要》”)第一百一十五条认可了庭外重组协议在破产重整中的效力,但是在司法实践中仍然存在诸多问题。

    第一,《九民纪要》第一百一十五条明确的是庭外重组与庭内重整程序的衔接。从文义解释角度,该条仅能适用于最终转化为破产重整的庭外重组程序。而庭内企业拯救程序不仅包括破产重整程序,同时也包括破产和解程序。庭外债务重组协议的效力能否延伸到破产和解程序中仍有待进一步明确。

    Filed under:
    China, Insolvency & Restructuring, Zhong Lun Law Firm
    Authors:
    Gordon Wei
    Location:
    China
    Firm:
    Zhong Lun Law Firm
    New insolvency landscape on the horizon: more options for companies to reorganise and restructure
    2023-08-22

    Belgium had accumulated a significant legislative backlog within insolvency law. The European Directive 2019/1023 on restructuring had to be transposed into national law by the member states by 17 July 2022 at the latest. The Belgian government did not submit a draft bill to this effect until 20 March 2023. This draft has since been voted into law and will enter into force on 1 September 2023.

    Several amendments are being made to (among others) Book XX of the Belgian Economic Law. The main amendments are briefly discussed below.

    Filed under:
    Belgium, European Union, Company & Commercial, Insolvency & Restructuring, ALTIUS, European Commission, European Court of Justice
    Authors:
    Bart Heynickx
    Location:
    Belgium, European Union
    Firm:
    ALTIUS
    Corporate Advisory Update - August 2023
    2023-08-20

    In this edition of Gilbert + Tobin's Corporate Advisory Update, we focus on key legal developments over the last month which are particularly relevant to in-house counsel.

    The ACCC’s recommended merger reforms: a deeper dive

    The ACCC’s recommended reforms have several significant implications for merging parties:

    Filed under:
    Australia, Company & Commercial, Environment & Climate Change, Insolvency & Restructuring, Litigation, Gilbert + Tobin, Cryptocurrency, Merger control, ESG, Greenwashing, International Organization of Securities Commissions, Australian Securities and Investments Commission, Competition and Consumer Act 2010 (Australia), Corporations Act 2001 (Australia), UK Supreme Court
    Authors:
    Hiroshi Narushima , Sally Randall
    Location:
    Australia
    Firm:
    Gilbert + Tobin
    Pre-pack sale proceedings in Croatia and the impact of the EU’s insolvency law Draft Directive
    2023-08-21

    In late 2022, the European Commission proposed a new Directive with a view to harmonise certain aspects of insolvency law. One of the most important innovations to be introduced in this Draft Directive is pre-pack proceedings.

    What is a pre-pack sale?

    Filed under:
    Croatia, European Union, Insolvency & Restructuring, Litigation, CMS Legal, European Commission
    Authors:
    Jelena Nushol Fijačko , Darijo Gospić
    Location:
    Croatia, European Union
    Firm:
    CMS Legal
    Debtors In Possession May Be Sued “Without Leave Of The Court”?! (28 U.S.C. § 959(a), East Coast, & In re Crown)
    2023-08-17

    “Learn something new every day,” is a well-worn adage.

    And it’s mostly true (I only question giving a literal meaning to the “every day” part).

    Nevertheless, I’m embarrassed to acknowledge learning only recently of the existence of a noteworthy, bankruptcy-related statute: 28 U.S.C. § 959(a). Such statute reads in part (emphasis added):

    Filed under:
    USA, Nebraska, Insolvency & Restructuring, Litigation, Koley Jessen PC
    Authors:
    Donald L. Swanson
    Location:
    USA
    Firm:
    Koley Jessen PC
    Circulating assets come and go, security remains resilient
    2023-08-17

    When do amounts owed to a company constitute ‘circulating assets’ and how should they be distributed? This crucial question has not always been answered predictably in recent cases. The Court of Appeal’s decision in Resilient Investment Group Pty Ltd v Barnet and Hodgkinson as liquidators of Spitfire Corporation Limited (in liq) [2023] NSWCA 118 has provided a framework for navigating the relevant principles in the context of a priority dispute over R&D tax refunds.

    Key takeaways

    Filed under:
    Australia, New South Wales, Insolvency & Restructuring, Litigation, Tax, Corrs Chambers Westgarth, Fintech, Corporations Act 2001 (Australia), Personal Property Securities Act 2009 (Australia)
    Authors:
    Craig Ensor
    Location:
    Australia
    Firm:
    Corrs Chambers Westgarth
    HMRC ordered to bear the costs of an ill-founded bankruptcy (Re Adjei)
    2023-08-18

    Dispute Resolution analysis: In a case where a bankruptcy was annulled on the basis that the alleged tax liability was ill-founded and misconceived, HMRC has been ordered to bear the OR’s and the trustees’ costs of the bankruptcy.

    Re Adjei [2023] EWHC 1553 (Ch)

    What are the practical implications of this case?

    Filed under:
    United Kingdom, Insolvency & Restructuring, Litigation, Tax, Gatehouse Chambers, HM Revenue and Customs (UK), Insolvency Act 1986 (UK)
    Authors:
    Phillip Patterson
    Location:
    United Kingdom
    Firm:
    Gatehouse Chambers
    Comment on the Proposition de Fuoco decision - The criteria for a provable claim and the debt resulting from the legal warranty of quality
    2023-08-18

    INTRODUCTION

    Despite abundant case law on latent defects and what constitutes a provable claim, Quebec courts have rarely been called upon to decide an issue involving both concepts.

    Filed under:
    Canada, Insolvency & Restructuring, Litigation, Langlois Lawyers LLP
    Authors:
    Elizabeth Latulippe Bresolin , Aurélie Figuet
    Location:
    Canada
    Firm:
    Langlois Lawyers LLP

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