What remedies should lenders, borrowers and opportunistic credit investors prescribe in light of current market practice and documentation?

This article examines some of the current issues arising in leverage finance agreements on defaults and the expansion of express remedy terms that can impact on debt transfers.

Key Points

In recent years the world’s major financial hubs have placed an increased emphasis on cross-border communication and cooperation when it comes to the insolvency and restructuring of international enterprises. Singapore, for example, has implemented a new insolvency regime and the UK, for its part, has added a new scheme of arrangement comparable in some respects to Chapter 11 in the US.

In a recent decision of the Supreme Court of New South Wales (In the matter of C.V. Joint (Aust) Pty Ltd [2002] NSWSC 981), a provisional liquidator was appointed by the Court to a company primarily due to an ongoing dispute between the directors and shareholders. The case is a useful reminder of the relevant principles that apply when seeking to have a provisional liquidator appointed.

Key takeaways

知名的上海臺商麺包店宜芝多因受困於疫情，在2020年關閉了70家門市，惟惡夢連連，正當中國大陸疫情緩解之際，晚近又出現關於屬下門市大規模停業的消息。唯當企業進入後疫情時代，或許就會頻繁出現諸如宜芝多之類企業財務困境的情況；即一言以蔽之，好不容易從疫情最艱苦的時刻中堅持過來，換來的卻可能是舊商業模式的裂解、新商業模式的重塑。基此，本文以下將會循中國大陸企業破產法的角度切入，探討制定符合台商之最大利益的重整計畫；反之，就是走向破產清算，此時的大陸台商又當如何平衡勞工、消費者、股東等相關利害關係人的利益。

Those of us in the restructuring community are all too aware of the “ripple-out” effect caused by the financial deterioration and failures of multi-national companies on the wider supply chain and customers in general.

Curtea Europeană de Justiție a Uniunii Europene a decis recent că Articolul 2 alineatul (2) și articolul 12 literele (a) și (c) din Directiva 2008/94/CE a Parlamentului European și a Consiliului din 22 octombrie 2008 privind protecția lucrătorilor salariați în cazul insolvenței angajatorului, astfel cum a fost modificată prin Directiva (UE) 2015/1794 a Parlamentului European și a Consiliului din 6 octombrie 2015, trebuie interpretate în sensul că se opun unei jurisprudențe naționale potrivit căreia o persoană care exercită în mod cumulativ, în temeiul

In Re Tantleff, Alan [2022] SGHC 147, the Singapore High Court considered for the first time whether the United Nations Commission on International Trade Law (UNCITRAL) Model Law on Cross-Border Insolvency (30 May 1997) (the "UNCITRAL Model Law") as enacted under the Insolvency, Restructuring and Dissolution Act 2018 ("IRDA") (the "Singapore Model Law") applies to real estate investment trusts ("REITs").

Is the rule in Gibbs justifiable in the context of modern international insolvency laws or is England clinging to an outdated rule simply to keep restructurings here? The rule stems from an 1890 Court of Appeal Case, which holds that only English courts can validate the compromise or discharge of English law governed debt. The rule cuts across the trend of increased cross-border cooperation in insolvency matters – commonly described as the “modified universalist” approach and critics see the rule as a relic of a more Anglo-centric approach to insolvency law.

When an enforcement authority issues guidelines to its personnel for making enforcement decisions and makes those guidelines public, all who are subject to that authority should sit-up and take notice.

On June 10, 2022, the U.S. Trustee’s Office, Department of Justice, issues “Guidelines” to its personnel for enforcing rules on “Bifurcated Chapter 7 Fee Agreements.”[Fn. 1]

Here is an internal description on the nature of the guidelines (at 6):

Liquidation is the process whereby the Official Receiver or an insolvency practitioner formally takes control of a company in order to realise and distribute its assets to its creditors to satisfy the debts owed. Following this realisation and distribution, the company will be dissolved.

A company can enter into liquidation in a variety of different ways: