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    Ashurst Restructuring Roundup
    2025-02-07

    Terminating DoCA's (Part 3) – Administrators' Casting Vote

    Commissioner of State Revenue v McCabe (No. 2) [2024] FCA 662 ("McCabe")

    IMO Academy Construction & Development Pty Limited [2024] NSWSC 808 ("Academy Construction")

    Summary

    Where there is a deadlock between the majority in value of creditors and those creditors with a majority in number on the vote for a DoCA, the administrator has a casting vote.

    Filed under:
    Australia, Insolvency & Restructuring, Litigation, Ashurst
    Authors:
    Richard Fisher , Alinta Kemeny , Bernie Walrut , Camilla Clemente , Emanuel Poulos , James Marshall , Jason Salman , Michael Sloan , Ross McClymont , Richard Johnson
    Location:
    Australia
    Firm:
    Ashurst
    BAPCPA: Extremely Harsh On Student Loans (Brunner & Briscoe)
    2025-02-06

    Before 1998, (i) all student loans from for-profit lenders were dischargeable in bankruptcy, but (ii) student loans backed by the federal government or from non-profits were dischargeable in only these circumstances:

    Filed under:
    USA, Nebraska, Insolvency & Restructuring, Litigation, Koley Jessen PC, Bankruptcy Abuse Prevention and Consumer Protection Act 2005 (USA)
    Authors:
    Donald L. Swanson
    Location:
    USA
    Firm:
    Koley Jessen PC
    What Types of Releases Are Contained in a Chapter 11 Plan, and Do I Have to Agree to Them?
    2025-02-06

    Chapter 11 plans contain various releases -- some in favor of the debtor and some in favor of certain nondebtor third parties. However, while creditors are bound by a Chapter 11 discharge, creditors have options for how to deal with a plan's third-party release.

    Key Issues

    CHAPTER 11 DISCHARGE

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Troutman Pepper Locke, Supreme Court of the United States
    Location:
    USA
    Firm:
    Troutman Pepper Locke
    Legal update on cryptocurrency liquidation case
    2025-02-06

    Following the High Court’s landmark case in 2023 where cryptocurrency was recognised by the Court as property and could form a subject matter of a trust, the High Court recently further clarified the trust relationship between exchanges and their customers. Non-Consenting Customers (NCCs) who did not accept the 2018 Terms and Conditions (T&C) were found to have a proprietary interest in their assets, giving them priority in the liquidation process. Conversely, customers who had agreed to the T&Cs were treated as unsecured creditors.

    Filed under:
    Hong Kong, Banking, Insolvency & Restructuring, IT & Data Protection, Litigation, CMS Cameron McKenna Nabarro Olswang LLP, Liquidation, Due diligence, Cryptocurrency
    Authors:
    Jonathan Chu , Mengyi Chen , Eugene Wong
    Location:
    Hong Kong
    Firm:
    CMS Cameron McKenna Nabarro Olswang LLP
    Supreme Court Resolves Regulatory Ambiguity between IBC and Competition Act
    2025-02-06

    The Competition Act, 2002 mandates the Competition Commission of India (“CCI”) to regulate large sized mergers and acquisitions beyond high value thresholds (in terms of assets or turnovers) prescribed for “combinations” under the Competition Act, 2002 (“the Act”) to assess whether such transactions could adversely affect competition in the relevant markets, It is an exante process which requires a deep and forwardlooking economic analysis of the competition scenario likely to emerge post such proposed combination.

    Filed under:
    India, Competition & Antitrust, Insolvency & Restructuring, Litigation, Vaish Associates Advocates, Insolvency and Bankruptcy Code (India), National Company Law Tribunal
    Authors:
    M M Sharma
    Location:
    India
    Firm:
    Vaish Associates Advocates
    Insolvenzforderung vs. Masseforderung
    2025-02-06

    Ist der Vertragspartner insolvent, stellt sich die Frage nach der Einordnung der offenen Forderungen: Insolvenzforderung oder Masseverbindlichkeit?

    Ob man Insolvenz- oder Massegläubiger ist, spielt vor allem wegen der fast immer unterschiedlichen Befriedigungsquote eine große Rolle: Insolvenzforderungen werden nur in Höhe der (meist geringen) Insolvenzquote bedient, während Masseverbindlichkeiten (häufig auch als Masseforderung bezeichnet) grundsätzlich in voller Höhe vorab aus der Insolvenzmasse befriedigt werden.

    Filed under:
    Germany, Banking, Insolvency & Restructuring, Litigation, CMS Germany
    Authors:
    Dr. Alexandra Schluck-Amend , Franziska Fuchs
    Location:
    Germany
    Firm:
    CMS Germany
    Main Contractor Insolvency - Part 2: Pre-Empting the Risk- 5 Key Tips
    2025-02-05

    We recently published some useful guidance on how to deal with main contractor insolvency during a live project. You can find it here.

    Filed under:
    United Kingdom, Insolvency & Restructuring, Ashurst, Insolvency
    Authors:
    Simon Clarke , Matt Pearson , Ben Patton , Chris Whitehouse , Sadia McEvoy
    Location:
    United Kingdom
    Firm:
    Ashurst
    Restructuring Department Bulletin - February 2025
    2025-02-05

    Bankruptcy-remote LLC Agreement Did Not Impermissibly Restrict

    LLC’s Right to File Bankruptcy

    In re 301 W. North Ave., LLC, Case No. 24-02741 (Bankr. N.D. Ill.

    Jan. 6, 2025), the Bankruptcy Court dismissed the chapter 11 case

    of a Delaware limited liability company for “cause” under section

    1112(b) of the Bankruptcy Code because the company had not been

    properly authorized to file for chapter 11 relief. The court found that

    the underlying LLC agreement prohibited the company from filing a

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Paul Weiss Rifkind Wharton & Garrison LLP
    Location:
    USA
    Firm:
    Paul Weiss Rifkind Wharton & Garrison LLP
    Sino-Ocean’s Contentious Rescue Plan: Court Sides with Survival
    <br>
    2025-02-04

    The Sino-Ocean restructuring plan is the first to be sanctioned in 2025 – but it starts the year off with a very interesting bang. In a relatively short (and commendably clear) judgment, the Court addresses head on:

    Filed under:
    United Kingdom, Insolvency & Restructuring, Litigation, Freshfields
    Authors:
    Alistair Milne , Xuan Boh , Katharina Crinson , Rachel Seeley , Richard Tett , Daniel Anderson
    Location:
    United Kingdom
    Firm:
    Freshfields
    When invoices fall short: nclt and nclat's stance on denying interest claims for operational creditors
    2025-02-04

    The National Company Law Tribunal (NCLT) and the National Company Law Appellate Tribunal, Delhi (NCLAT), have recently issued judgments in the case of Rishabh Infra v. Sadbhav Engineering Ltd1., which, despite their partially correct conclusions, appear to exhibit significant judicial overreach. These rulings warrant critical scrutiny on several grounds, particularly because their reasoning raises concerns about the implications for litigants, especially operational creditors, within the framework of the Insolvency and Bankruptcy Code, 2016 (IBC).

    Filed under:
    India, Insolvency & Restructuring, Litigation, Anhad Law, Insolvency and Bankruptcy Code (India), National Company Law Tribunal
    Authors:
    Dhruv Gandhi , Deepam Rangwani
    Location:
    India
    Firm:
    Anhad Law

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