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.

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.

Two recent judgments from different Australian courts have considered circumstances in which insolvency disputes can (or cannot) be arbitrated in accordance with pre-existing arbitration agreements. In particular, the decisions address the following two key issues:

• when certain insolvency claims can be arbitrated; and
• when a third party can participate in arbitral proceedings either claiming or defending ‘through or under’ a party to the arbitration agreement.

Key takeaways

In Re Guy Kwok-Hung Lam v. Tor Asia Credit Master Fund LP [2023] HKCFA 9, the Court of Final Appeal (CFA) handed down a decision in an appeal concerning the appropriate exercise, by the Court of First Instance (CFI), of the discretion to decline the exercise of jurisdiction in bankruptcy and insolvency matters on forum grounds, specifically, where the underlying dispute regarding the petition debt is the subject of an exclusive jurisdiction clause (EJC).

Background

The U.S. Court of Appeals for the Seventh Circuit recently affirmed the dismissal of a consumer’s lawsuit against a debt collector, holding that the consumer lacked Article III standing to sue because his allegations of ʺconfusion” and “alarm” were not sufficiently concrete to result in an injury in fact.

A recent amendment to the Goods and Services Tax Act 1985 has clarified that voluntary administrators are personally liable for the GST of companies under their administration.

What can we say about the outcome of the GAS (Great Annual Savings Company Limited) sanction hearing that hasn’t already been reported?

It’s impossible not to comment on the fact that the plan was not sanctioned, and as a consequence of fierce opposition from HMRC that it avoided cram down. Nor that the court refused to sanction the plan on the basis that the conditions for cram down were not met – the court was not satisfied that HMRC would be better off under the plan and even if it were the judge said he would have not exercised his discretion to cram down.

The original version of this article was first published in the Trilegal Quarterly Roundup.

Key Developments

1. SEBI prescribes new disclosure requirements and dos and don’ts for the issue of green debt securities

Is a debtor “engaged in commercial or business activities” for Subchapter V eligibility?

Such question has been addressed on many occasions and by many courts.

The trend seems to be toward a conclusion that the nature and quantity of “commercial or business activities” required for Subchapter V eligibility is this:

• Nature = “easily met”; and
• Quantity = “not much.”

The latest opinion to confirm the trend is In re Robinson, Case No. 22-2414, Southern Mississippi Bankruptcy Court (issued April 17, 2023; Doc. 90).

A bankruptcy petition should not proceed if the debt is disputed and subject to an exclusive jurisdiction clause in favour of a foreign court.