Introduction
In an environment of interest rate pressure, a cooling economy and global economic uncertainty, corporate insolvencies are a stark reality. The failure of construction companies has become regular news and ASIC recently released insolvency data that shows a marked uptick in Australian insolvencies in general.
A recent English law case has highlighted an issue relevant to those involved in Channel Islands-related insolvencies – and particularly to insolvency practitioners ("IPs") who take on appointments as administrators – about the interplay between insolvency legislation and employment law.
引言
按照《中华人民共和国企业破产法》（“《企业破产法》”）第三十二条[1]规定，管理人有权起诉请求法院撤销破产企业在一定期间内的个别清偿行为。债权人在面对该类个别清偿撤销诉讼时，时常面临举证困难、法律适用不明确等困境。
我们近期代理某金融机构债权人处理一宗个别清偿纠纷诉讼二审程序。本文将尝试结合这一案件，提出我们对上述法律规定的思考，讨论债权人应对个别清偿撤销诉讼的“困境”与“突围”，并且为债权人提供缓释该类纠纷带来的潜在风险的思路。
一、债权人应对个别清偿撤销纠纷的困境
为充实破产企业偿债资产、维护债权人公平受偿，《企业破产法》赋予管理人针对债务人破产前一定期间内特定行为的撤销权。本文关注的是《企业破产法》第三十二条指向的债务人在破产申请受理前6个月内的个别清偿行为，或称“偏颇性清偿行为”。依照该条规定，撤销该类行为需要满足以下条件：
A recent Alberta case continues the development of a line of cases at the intersection of environmental protection and bankruptcy and insolvency law in Canada.
The High Court (Court) has found that it was not appropriate to make a winding up order in respect of a company under section 760(2) of the Companies Act 2014 (Act), where no party was nominated or consented to act as liquidator.
On May 8, cryptocurrency platform Bittrex filed for chapter 11 in Delaware. Bittrex’s first day filings emphasize that, unlike many other crypto filings over the past year, this case is not a “free fall” bankruptcy. In fact, a plan has already been filed, and the first day declaration said the debtors “took extensive action pre-petition to ensure full customer recovery, and plan to swiftly bring these chapter 11 cases to a responsible conclusion.”
On 16 May 2023, Mr Justice Adam Johnson in the High Court refused to sanction the restructuring plan proposed by The Great Annual Savings Company Limited (GAS) following objections from HMRC.
Introduction
The Insolvency, Restructuring and Dissolution Act 2018 (2020 Rev Ed) ("IRDA") allows companies intending to propose a scheme of arrangement to apply to court for a moratorium, during which proceedings against the company would be restrained so as to allow breathing room for its restructuring efforts. To balance this with the safeguarding of creditors' interests, there are certain requirements for an application for a moratorium.
On 21 April 2023, the English High Court handed down its written reasons for sanctioning the Adler Group restructuring plan proposed under the new Part 26A regime of the UK’s Companies Act 2006, which raised questions regarding the jurisdiction of the Court, cross-class cram downs, pari passu issues and competing valuations.