In a recent case involving a former financial services provider in liquidation, thousands of pending claims from former customers and a letter of comfort with a looming expiry date, the Liquidators appointed to wind up Forex Capital Trading Pty Limited successfully applied to the Federal Court of Australia for orders permitting them to conduct an expedited process for the adjudication and admission of claims.

Background

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Insurance Fights Can Complicate The Bankruptcy Labyrinth

By Shane Dilworth

I’m on a curiosity-quest to find the first-ever U.S. Supreme Court opinion on the subject of bankruptcy.

Excitement arises, for a moment, upon discovering Gibbs v. Gibbs, 1 U.S. 371 (1788). After all, Gibbs v. Gibbs:

Three scholars published a new analysis of Chapter 7 and Chapter 11 consumer bankruptcy filings that is likely both the broadest and the most targeted study of consumer bankruptcy filing since Teresa A. Sullivan, Elizabeth Warren and Jay Lawrence Westbrook published The Fragile Middle Class: Americans in Debt. The new study by Professors Pamela Foohey, Robert M. Lawless and Deborah Thorne is titled

The major cryptocurrencies have experienced significant declines in 2022; with the crypto market shedding $2 trillion of its peak $3 trillion market capitalization in November 2021. Amid this “crypto winter,” Terra Luna and its algorithmic stablecoin collapsed, triggering a domino effect of losses and illiquidity throughout the crypto industry. The hedge fund Three Arrows Capital was the first big domino to fall, defaulting on $1 billion in loans including $650 million owed to Voyager Digital (“Voyager”).

Changes have been introduced to the current Irish examinership regime with effect from 29 July 2022 when the European Union (Preventive Restructuring) Regulations 2022 (the “Regulations”) transposed into Irish Law certain mandatory articles of the European Union Preventive Restructuring Directive (EU Directive 2019/1023) (the “Directive”) that relate to corporate insolvency.

In Scotland claims (e.g. the right to payment) are currently transferred by assignation followed by intimation (i.e. notice) of the transfer to the party which is under an obligation to perform the obligation (e.g. making a payment).

Canada’s insolvency regime provides a “fresh start” policy for honest but unfortunate debtors. The policy relieves Canadians from excessive debts through bankruptcy, except in certain instances such as where a debt arises from the bankrupt’s deceitful or dishonest conduct.

In a recent order passed by the National Company Law Appellate Tribunal, Principal Bench (NCLAT), dismissing two appeals in Sudip Dutta @ Sudip Bijoy Dutta v. State Bank of India, Company Appeal (AT)(Insolvency) No. 807 of 2021 and Sudip Dutta @ Sudip Bijoy Dutta v. State Bank of India & Anr., Company Appeal (AT)(Insolvency) No. 740 of 2022 (dated 29 July 2022), it was held that merely by acquiring foreign citizenship after the execution of a deed of guarantee, a personal guarantor cannot escape his/her liability under the guarantee.

系列导语

在各类跨境投资的项目中，投资人最担心的问题莫过于被投企业的财务状况出现困境，进而影响其持续经营能力和偿债能力并最终演变为债务危机。这些投资人可能是企业公募或私募债券的持有人、享有抵押品的银团放贷机构、各类融资架构中的夹层债权人，或是享受回购权或强制出售权的权益投资人。

跨境投资项目下的债务重组，往往会涉及多法域下的复杂法律问题、救济方式和司法程序。特别是在典型的境外持股架构下，当开曼公司作为境外母公司出现债务危机时，如何通过BVI及香港子公司逐级下沉债权人的风控或增信机制，如何衔接和落地相关境内外救济措施，如何最终帮助债权人控制或取得境内子公司的资产或其提供的担保品或抵押品，这些问题的妥善解决是债务重组成功的关键。这要求参与跨境债务重组项目的专业执行团队具有跨市场和跨国界的运作能力、多法域的法律和司法实操经验、高效的项目管理能力以及深刻的风险认知和风险反制筹划能力。由于各个法域下的质权之设立、优先顺位和有效性对于债权人和质押权人来说至关重要，加强对主要离岸法域对质押行为的程序性规定和质权有效性的判定认识能有效地防范潜在的交易风险。