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
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.
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.
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?
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.
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.
In einer aktuellen Entscheidung hat das BAG festgestellt, dass die Vermutungswirkung des § 125 Abs. 1 Nr. 1 InsO auch dann eingreift, wenn bis zu einem anvisierten Stilllegungszeitpunkt noch viel Zeit vergeht und für ein Unternehmen in der Zwischenzeit – anders als prognostiziert – doch ein Erwerber gefunden wird (BAG, Urteil vom 17. August 2023 – 6 AZR 56/23, PM).
In this week’s TGIF, we consider Morgan & Ors v McMillan Investment Holdings Pty Ltd & Anor [2023] HCATrans 122, a decision to grant special leave, paving the way for the High Court to clarify the law with respect to pooling orders.
Key takeaways