上市公司重整是重整领域的风向标，由于其衔接了资本市场和破产制度两大重要领域，且上市公司具有公众性、公开性和稀缺性等特点，因此受到了广泛的关注，可谓是重整皇冠上的一颗明珠。自《中华人民共和国企业破产法》实施至今，共计103家上市公司实施了重整，其中最近四年的重整案例数量占据了总量的半壁江山并呈现出新的特点，同时亦产生诸多前沿法律问题并在一定程度上推动了现行重整制度和证券监管政策的变革和调整。
一、近年上市公司重整所呈现的特点
1. 顶层政策明确支持。2020年，国务院在《关于进一步提高上市公司质量的意见》中，明确提出“支持上市公司通过并购重组、破产重整等方式出清风险”。在实务中，近年来证监会对上市公司重整受理的审查政策适度宽松。主要表现在证监会对于上市公司违规担保、资金占用等问题，有条件地允许其在重整程序之中解决，而此前证监会原则上要求上市公司在进入重整前解决此类问题，致使很多存在违规问题的上市公司对重整脱困之路只能“望洋兴叹”。
Facts
Insolvency Act 2003
Comment
In the Three Arrows case,(1) the BVI Court has endorsed what is believed to be its first extra-territorial order summoning directors of a BVI company (in liquidation) to appear for private examination by joint liquidators.
FTX. Blockfi. Voyager. Celsius Network. Genesis. Silvergate Capital Corp. Whether due to alleged corporate fraud or the waterfall effect of a downward spiraling industry, as the past year has unfolded more and more cryptocurrency giants—previously touted by pundits and celebrities as sound new age investments—have filed for relief under the United States Bankruptcy Code.
Small business owners commonly guaranty certain obligations of their businesses. This stages a potential domino effect if the business is unable to satisfy its obligations. A failed business triggers a creditor to pursue the personal guaranty of the business owner, which can cause the business owner to file a bankruptcy petition if they do not have the ability to satisfy the guaranty. In those scenarios, the guaranty liability is a primary cause of the business owner’s bankruptcy and discharging that guaranty liability is the primary goal.
Summary
The manufacturing sector in Germany is currently being hit hard. The reasons are massive increases in material prices and energy costs due to the indirect consequences of the Corona pandemic, disrupted supply chains and the Ukraine war. As a consequence of the economic crisis and insolvency of an important customer, Berner GmbH, based in Osnabrück, decided to continue its restructuring course within the framework of a petition filed on 23.03.2023 with the competent Osnabrück Local Court for the initiation of insolvency proceedings in self -administration.
Debtors in possession or other estate representatives are required to pay U.S. Trustee fees during the pendency of the case. It is often assumed that other entities to whom estate property is transferred must also pay such fees until the case is closed. But as a couple of recent cases illustrate, it may be possible with careful drafting to curtail the reporting and payment of such fees once assets are transferred to a liquidating trust.
A company voluntary arrangement (CVA) is a tool which has been widely utilised by companies seeking to restructure and compromise liabilities.
In recent years CVAs have been in the limelight because of attacks by landlords who feel that they have been unfairly prejudiced by the CVA terms. Largely, challenges such as those to the Regis and New Look CVAs have been unsuccessful, but arguments about unfair prejudice based on “vote swamping” were left open for future debate.
For at least the past decade, federal bankruptcy courts have routinely prohibited cannabis businesses from seeking protection under federal bankruptcy law, regardless of whether a cannabis business is legally operating under state law.
Céline Domenget Morin and Loris Julia, Goodwin Procter LLP
This is an extract from the 2023 edition of GRR's Europe, Middle East and Africa Restructuring Review. The whole publication is available here.