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    What changes will the Czech Republic's new preventive restructuring act bring to debtors and creditors?
    2023-09-27

    After a delay of more than a year, an act on preventive restructuring (the "Act") implementing the EU directive on preventive restructuring frameworks finally became effective in the Czech Republic on 23 September 2023. The long-awaited Act introduces a brand-new legal tool preventing the insolvency of viable enterprises in temporary financial distress.

    What is preventive restructuring and why use it?

    Filed under:
    Czech Republic, Insolvency & Restructuring, Schoenherr, Insolvency
    Authors:
    Natálie Rosová
    Location:
    Czech Republic
    Firm:
    Schoenherr
    Second Circuit Rules That Syndicated Term Loans Are Not Securities
    2023-09-27

    On August 24, 2023, the U.S. Court of Appeals for the Second Circuit held in Kirschner v. JP Morgan Chase Bank, N.A. et al. that certain syndicated term loans2 at the center of a transaction involving JP Morgan Chase and other banks were not securities under state law. While the Second Circuit did not foreclose the possibility that syndicated term loans could be securities under different circumstances,3 for now Kirschner cements the long-standing view -- following Banco Espanol de Credito v.

    Filed under:
    USA, Banking, Capital Markets, Insolvency & Restructuring, Litigation, Cahill Gordon & Reindel LLP, Medicare, Medicaid, Confidential information, US Securities and Exchange Commission, US Department of Justice, Federal Deposit Insurance Corporation (USA), Bank of Montreal Financial Group, False Claims Act 1863 (USA)
    Location:
    USA
    Firm:
    Cahill Gordon & Reindel LLP
    Clarity Brought to the Court’s Approach in Restraining Arbitration and Other Proceedings Brought Against Companies Facing Winding Up Proceedings
    2023-09-27

    As recognized by Recorder Abraham Chan SC in the very first line of his Reasons for Decision inChina Evergrande Group v Triumph Roc International Ltd [2023] HKCFI 2432, it is no secret that the Plaintiff, China Evergrande Group, is in financial difficulties and further, in June 2022, winding up proceedings have been commenced.

    Filed under:
    Hong Kong, Arbitration & ADR, Insolvency & Restructuring, Litigation, Des Voeux Chambers, Winding-up
    Authors:
    Alan Kwong , Sakinah Sat
    Location:
    Hong Kong
    Firm:
    Des Voeux Chambers
    Court imposes compensation order on disqualified director
    2023-09-28

    The court orders a disqualified director of an insolvent company to pay personal compensation to creditors.

    This is only the second time the courts have considered a personal compensation order against a disqualified director since their introduction in 2015.

    What happened?

    Secretary of State v Barnsby [2023] EWHC 2284 (Ch) concerned an individual who was the sole director and majority shareholder of a company that sold package holidays.

    Filed under:
    United Kingdom, Company & Commercial, Insolvency & Restructuring, Litigation, Trade & Customs, Macfarlanes LLP, Insolvency, Office of Financial Sanctions Implementation (UK), Insolvency Service (UK)
    Authors:
    Dominic Sedghi , Paul Keddie , Simon Beale , Amy Creed
    Location:
    United Kingdom
    Firm:
    Macfarlanes LLP
    Who foots the bill following the reversal of a bankruptcy order?
    2023-09-28

    Back on 4 May 2023, the Hong Kong Court of Final Appeal (the “CFA”) in Re Guy Kwok-Hung Lam [2023] HKCFA 9 delivered a ground breaking judgment in relation to whether a foreign exclusive jurisdiction clause (EJC) should be upheld in insolvency cases, upholding the Court of Appeal’s (the “CA”) judgment that, in an ordinary case where there is an EJC, absent any countervailing factors such as the risk of insolvency affecting third parties and a dispute that borders on the frivolous or abuse of process, the petitioner and the debtor ought to be held to their contract and to submit their disput

    Filed under:
    Hong Kong, Insolvency & Restructuring, Litigation, Hill Dickinson
    Authors:
    Bryan O'Hare , Pui Yip Leung
    Location:
    Hong Kong
    Firm:
    Hill Dickinson
    An Update on the Ongoing Fight Over the United States Trustee’s Fees
    2023-09-28

    The United States Trustee Program is responsible for the efficient administration of bankruptcy cases throughout most of the country. Since 1986, the Trustee Program has covered all states except North Carolina and Alabama, where an Administrator Program oversees bankruptcy filings instead. Although there are many similarities between the two programs, there is a significant difference in the funding structure. The Trustee Program is entirely self-funded through quarterly fees paid by debtors that file in the Trustee Program districts.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Patterson Belknap Webb & Tyler LLP, Supreme Court of the United States
    Authors:
    Daniel A. Lowenthal , Kimberly Black
    Location:
    USA
    Firm:
    Patterson Belknap Webb & Tyler LLP
    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
    Overview of the Whittaker review and Government's response
    2023-09-26

    On 22 Sept 2023, the Australian government responded to the Whittaker Review, releasing the Personal Property Securities Amendment Bill 2023 for public consultation until 17 Nov 2023.

    Overview of the Whittaker review and Government's response

    Filed under:
    Australia, Capital Markets, Company & Commercial, Insolvency & Restructuring, Public, MinterEllison, US Senate, Corporations Act 2001 (Australia), Personal Property Securities Act 2009 (Australia)
    Authors:
    Andrew Vella , Nick Anson
    Location:
    Australia
    Firm:
    MinterEllison

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