Executive Summary
Investors in LMA-based intercreditor agreements1 (ICA) should be reassured by the commercial approach recently taken by the High Court in construing the "Distressed Disposal" provisions (DD Provisions).
Bouwen met vertrouwen: insolventie-gerelateerde aandachtspunten voor opdrachtgevers in bouwcontracten
I en komplex juridisk kontext där anställdas rättigheter vid konkurs står i fokus, har Göta hovrätt nyligen avkunnat ett beslut som kan få djupgående konsekvenser för hur fordringar på lön och liknande ersättning hanteras i svenska konkursfall. Beslutet, som inte överklagades till Högsta domstolen, har väckt både diskussion och oro inom rättsvärlden. Denna artikel granskar närmare det kontroversiella avgörandet, dess påverkan på konkursförvaltare och anställda samt de potentiella konsekvenserna för konkursförfarandena i framtiden.
Singapore's economy is expected to see slower growth in 2023 after its rapid recovery from the pandemic in 2022, with the Ministry of Trade and Industry recently narrowing the GDP growth forecast for the year.1 As industries continue to feel the pinch of high inflation and interest rates, creditors and debtors alike may be considering appropriate solutions for companies which struggle to pay their debts.
Where a bankruptcy order has been made and the Official Receiver/trustee in bankruptcy has been appointed, how should their fees and expenses be dealt with if the bankruptcy order is later set aside following the debtor’s successful appeal? Further, if the bankruptcy proceedings were commenced in breach of an exclusive jurisdiction clause should costs be awarded on an indemnity basis?
These questions were recently considered by the Court of Appeal in Re Guy Kwok-Hung Lam [2023] HKCA 1099. Three key points can be gleaned from the judgment:-
When seeking to recover arrears under a lease, it is often possible to act to recover funds without the need for a court order. If a lease has been registered for preservation and execution in the Books of Council and Session, a creditor can normally move to instruct Sheriff Officers to recover the funds. This procedure is known as summary diligence and can take several forms.
Insolvency practitioners and other potentially affected stakeholders, such as company directors and corporate trustees, should watch this space carefully to keep abreast of any changes to their obligations.
This week's issue has a strong risk focus. We cover speeches from ASIC Chair Joe Longo and Minister for Home Affairs Clare O'Neil to the AFR Cyber Summit. On the financial services front, the FAR Bills received Assent and the ABA's new Banking Code is anticipated to be in place in 'early 2024' (subject to ASIC approval).
The new Italian Insolvency Code came into effect on 15 July 2022, effectively changing the status quo by attempting to resolve the financial distress of companies and minimise damage through restructuring outstanding debt. The code makes restructuring frameworks the first measure to help debtors restructure their debt to prevent further insolvency and liquidation. More importantly, it is a break from the status quo in insolvency law whereby maximising a creditor’s return is of the utmost importance. Instead, preserving the company as a going concern becomes a protected value.
A party must meet a high bar before the High Court will modify or reverse a liquidator’s decision, or consent to a party commencing adjudication (or other legal proceedings) against a company in liquidation (ss 284(1)(b) and 248(1)(c) of the Companies Act 1993, respectively).
Both issues have been examined by the Court of Appeal in United Civil Construction Ltd v Hayfield SHA Ltd (In Liq) [2023] NZCA 377. This case illustrates the limited avenues available for a contractor to resolve payment of outstanding debts after a principal goes into liquidation.