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    Does tax have special status in Restructuring Plans? An examination of GAS and Nasmyth
    2023-05-22

    The English Court has refused to sanction two separate restructuring plans proposed by Nasmyth Group Limited (Nasmyth) and The Great Annual Savings Company Ltd (GAS). Both companies sought to use Part 26A of the Companies Act 2006 to “cram down” His Majesty’s Revenue and Customs (HMRC). Whilst neither decision is the first time that Part 26A has been used in this way1, they are the first to involve any active participation by HMRC in the sanction hearing2.

    Filed under:
    United Kingdom, Insolvency & Restructuring, Litigation, Tax, DLA Piper, HM Revenue and Customs (UK)
    Authors:
    David Ampaw
    Location:
    United Kingdom
    Firm:
    DLA Piper
    Cayman Grand Court confirms test for standing in contributory winding up proceedings
    2023-05-22

    In the Matter of Global Cord Blood Corporation (FSD 108 of 2022, 31 March 2023), Kawaley J confirmed and clarified the legal test that applies when a third party seeks to be heard on a winding up petition. The case is a reminder that, generally speaking, only legal shareholders of a company are entitled to be joined to petition proceedings or present a contributory's petition.

    Filed under:
    Cayman Islands, Insolvency & Restructuring, Litigation, Ogier
    Authors:
    Max Galt
    Location:
    Cayman Islands
    Firm:
    Ogier
    Between the lines- May, 2023
    2023-05-22

    May, 2023 For Private Circulation - Educational & Informational Purpose Only A BRIEFING ON LEGAL MATTERS OF CURRENT INTEREST KEY HIGHLIGHTS * Supreme Court: Directors cannot escape penal liability in cheque dishonoring cases by citing company's dissolution. ⁎ Bombay High Court: A share purchase agreement containing option to sell the shares does not amount to derivative contract, thereby does not violate provisions of SCRA. * NCLAT: Fraud for the purpose of Section 66 of the IBC includes a debt where the debtor has no intention to repay.

    Filed under:
    India, Capital Markets, Company & Commercial, Insolvency & Restructuring, Litigation, Vaish Associates Advocates, Articles of association, Insolvency, Securities and Exchange Board of India, Negotiable Instruments Act 1881 (India), Insolvency and Bankruptcy Code (India), Supreme Court of India, National Company Law Tribunal
    Location:
    India
    Firm:
    Vaish Associates Advocates
    Avanti Communications Ltd - High Court considers fixed charges in context of administration sale
    2023-05-23

    In the recent case of Avanti Communications Limited (in administration) [2023] EWHC 940 (Ch), the High Court revisited the perpetually knotty question: what level of control is necessary for a charge over assets to take effect as a fixed, rather than floating, charge?

    Filed under:
    United Kingdom, Insolvency & Restructuring, Litigation, Tax, Stevens & Bolton LLP, Employee Retirement Income Security Act 1974 (USA), HM Revenue and Customs (UK), House of Lords
    Authors:
    Tim Carter , Helen Martin
    Location:
    United Kingdom
    Firm:
    Stevens & Bolton LLP
    Student Loans Take Another Bankruptcy Hit: This Time On Subchapter V Eligibility (In re Reis)
    2023-05-23

    The hits keep coming for student loans in bankruptcy.

    This time the hit is this:

    • student loans for attending medical school do not qualify as “commercial or business” loans for Subchapter V eligibility.

    The central finding, for a medical student who worked as an employee for ten years before becoming an entrepreneur, is this:

    • “the gap between incurring the debt and actually engaging in . . . commercial or business activity as an owner is simply too great.”

    Background

    Filed under:
    USA, Banking, Insolvency & Restructuring, Litigation, Koley Jessen PC
    Authors:
    Donald L. Swanson
    Location:
    USA
    Firm:
    Koley Jessen PC
    Cayman Islands Restructuring: Cross-Class Cram Downs and Competing Valuations
    2023-05-23

    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.

    Filed under:
    Cayman Islands, United Kingdom, Company & Commercial, Insolvency & Restructuring, Conyers
    Authors:
    Jonathon Milne , Alex Davies , Mauricio Da Rocha
    Location:
    Cayman Islands, United Kingdom
    Firm:
    Conyers
    Indiana District Court Declines to Read Restrictions into Section 546(e) Securities Contract Safe Harbor
    2023-05-23

    On May 2, 2023, the US District Court for the Southern District of Indiana reversed a bankruptcy court’s ruling that read limitations into the application of Bankruptcy Code Section 546(e)’s safe harbor to a stock purchase transaction. Specifically, the District Court relied on the plain language of Section 546 in determining that a chapter 7 trustee could not avoid the transfer of $24.9 million by the debtor to repay a bridge loan in connection with a financed acquisition of the debtor’s stock two years prior to its bankruptcy filing.

    Filed under:
    USA, Indiana, Insolvency & Restructuring, Litigation, Securitization & Structured Finance, Hunton Andrews Kurth LLP, Bank of Montreal Financial Group, Supreme Court of the United States
    Authors:
    Justin F. Paget , Jennifer E. Wuebker
    Location:
    USA
    Firm:
    Hunton Andrews Kurth LLP
    English Court Refuses to Cram Down the Taxman
    2023-05-23

    Since their introduction to the English insolvency regime in 2020, court sanctioned restructuring plans under Part 26A of the UK Companies Act 2006 – a new, more-flexible alternative to traditional UK restructuring tools – which take some of their DNA from U.S. Chapter 11 bankruptcy proceedings (in particular, the ‘cross class cram down’ mechanism), have been a hot topic for insolvency lawyers.

    Filed under:
    United Kingdom, Insolvency & Restructuring, Vedder Price PC, Insolvency, HM Revenue and Customs (UK), Companies Act 2006 (UK), Corporate Insolvency and Governance Act 2020
    Authors:
    Trevor Wood , Nicholas J. Pascal , Henrietta Worthington , Samuel Wilson
    Location:
    United Kingdom
    Firm:
    Vedder Price PC
    German Insolvency Law
    2023-05-23

    German insolvency law is governed by a comprehensive Insolvency Code that entered into force on 1 January 1999 and has since then regularly been subject to amendments from time to time. There is only one primary uniform insolvency procedure that applies to both individuals and companies. In the following, we focus on companies. Insolvency proceedings can be initiated against any natural or legal person, excluding certain legal persons organized under public law, such as the German Federation or the German states.

    Filed under:
    Germany, Insolvency & Restructuring, Mayer Brown, Banking Act 1961 (Germany), Federal Court of Justice
    Location:
    Germany
    Firm:
    Mayer Brown
    Hong Kong Court of Appeal provides certainty on bar against reflective loss
    2023-05-19

    On 21 April 2023, the Hong Kong Court of Appeal (CA) released its judgment Power Securities Co Ltd v Sin Kwok Lam [2023] HKCA 594, which provided certainty on the application of the bar against reflective loss for shareholders.

    Background

    Filed under:
    Hong Kong, Company & Commercial, Insolvency & Restructuring, Litigation, Herbert Smith Freehills LLP, UK Supreme Court
    Authors:
    Gareth Thomas , Rachael Shek , Jojo Fan , Peter Ng
    Location:
    Hong Kong
    Firm:
    Herbert Smith Freehills LLP

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