1.1 Are there international treaties and/or cross-border instruments applicable?
In its decision in Shailesh Verma, Resolution Professional of Lavasa Corporation Limited vs. Maharashtra State Electricity Distribution Company Limited, a 3 (three)member bench of the Hon’ble National Company Law Appellate Tribunal (“NCLAT”) has held that continuation of electricity supply to a corporate debtor during the subsistence of the corporate insolvency resolution process (“CIRP”) is subject to payment for such supply.
Brief Facts
The Third Parties (Rights against Insurers) Act 2010 (the “2010 Act”) came into force on 1 August 2016 and replaced the Third Parties (Rights Against Insurers) Act 1930 (the “1930 Act”).
The previous 1930 Act had enabled a third party to bring a claim directly against an insurer where the insured had become insolvent, however a claimant had to (i) restore a dissolved company to the register of companies and obtain the leave of the court to allow proceedings to be commenced; (ii) obtain judgment against the insured; and (iii) commence separate proceedings against the insurer.
The Supreme Court decision in BTI v Sequana provided the first opportunity for the UK Supreme Court to address the duty of company directors to consider the interests of a company’s creditors when the company becomes insolvent or when it approaches or is at real risk of insolvency. Natalie Osafo and Francesca Bugg examine the decision and its implications for company directors.
中伦观点
在系列上篇中，我们梳理了地产项目债务重组相关政策，结合经验总结债务重组的原则、项目与项目公司尽职调查实务重点。在下篇中，我们着重梳理困境项目重组方案经验，并分享对行政赋能的一些思考，供读者参考。
房地产行业高速发展10余年，在“房住不炒”的宏观背景以及2020年8月“三道红线”政策后，因房地产行业的发展模式及市场发展规律、政策执行力度、国家宏观调控等多方面的原因，房地产市场从2021年9月开始经历行业“缩表”的阵痛，不少大型房地产企业先后出现债务风险，面临诸多的困难处境，继而影响资金方、施工方、材料设备供应方及购房业主等多方主体。房地产市场影响国民经济及民生多个方面，在行业困境下，政府亦在监管、维稳、施救等多方面遇到难题。表面上看，各方主体皆可按政策与法律处理，但实操中，商业诉求与法律的平衡，经济效果与社会效果、法律效果的协调，社会资源的调度与节约，仍需探索最佳路径。
本文仅就困境项目的成因、市场常见盘活方案等问题，从法律角度予以整理，请勿以此作为法律意见在实践中套用。
一、困境项目重组方案
The Bankruptcy Protector
Four decades and several years ago, Congress repeals the Federal Bankruptcy Act of 1898 and replaces it with the Bankruptcy Reform Act of 1978, aka the “Bankruptcy Code.”[Fn. 1]
A decade later, Justices on the U.S. Supreme Court are still disparaging the new Bankruptcy Code as the “sweeping changes Congress instituted in 1978” and “the radical reforms of 1978.”[Fn. 2]
The High Court has made an order appointing an inspector to investigate alleged fraud and unlawful activity by a company. It appears that this is the first time the order has been made on the application of a creditor seeking to recover its “investment”.
Part 13 of the Companies Act 20141 sets out the mechanism for the statutory investigation of the affairs of a company. Chapter 2 provides for the court appointment of an inspector to carry out a fact-finding investigation and report to the court. This is a discretionary relief.
As winter draws near, the days grow shorter, temperatures dip, and businesses will be turning on the lights longer and the heating up higher; all leading to higher energy bills. But, with continuing volatility in the energy market, how many businesses can afford to do so and will energy bills sound their death knell?