The Bankruptcy Law, applicable to FIEs and most other companies in China, will come into effect on 1 June 2007.
The Bankruptcy Law sets out a dual test of insolvency: inability to pay debts as they fall due ("cash flow insolvency") and insufficient assets to pay off all debts ("balance sheet insolvency"). Either a debtor or a creditor may apply to the court for reorganization or liquidation of the debtor. Court assistance may also be sought to conciliate.
The Financial Reporting Council (FRC) and institutional bodies have published the following guidance in relation to corporate governance and directors' remuneration in the last few months.
In the current economic climate, brokers will find the decision of the High Court in Euroption Strategic Fund Limited v Skandinaviska Enskilda Banker AB[2012] EWHC 584 (Comm) of considerable interest, since it considers the duties of a broker who is conducting a close out and liquidating the position of a client who is in a state of default, in this case for failure to meet margin requirements.
The Court ruled that:
In last month's edition of Middle East Exchange,we looked at the risks for directors of UAE companies in financial difficulties. In this month's edition, we consider the position from the other side of the negotiating table, namely the risks for creditors when a UAE company faces financial difficulties.
In brief
Courts have recently approved a number of means by which external administrators can realise value from insolvent agricultural managed investment schemes and deal with the rights of growers and sponsor creditors:
On 17 September the DWP published a consultation paper (attaching draft regulations) in which it proposes that certain corporate restructurings will not trigger an employer debt under section 75 of the Pensions Act 1995. Following on from amendments introduced by regulations in 2008, the draft regulations also make some technical amendments to the employer debt regime, which are intended to ease its operation in practice.
Section 75: a reminder
In a judgment only recently published via the Building Law Reports, the High Court has ruled that a winding up procedure applicable to companies should not be used where there is a triable issue as to the validity of an adjudicator’s decision relied on as evidence of a company being unable to pay its debts: Towsey v. Highgrove [2012] EWHC 2644 (Chancery Division).
Background
The Supreme Court handed down its judgment in relation to the client money application in the matter of Lehman Brothers International (Europe) (LBIE). The judgment has a number of implications for firms who hold client money, and for firms who hold money with banks and other firms as clients themselves. The complicated and controversial nature of the appeal is reflected in the sharply opposing opinions of the Lords in relation to two of the three issues considered.
The Singapore High Court has considered for the first time whether an action brought to avoid transactions that allegedly violated insolvency laws should be stayed in favour of arbitration. The court held that such disputes are not suitable for arbitration due to the public interest involved.
There have recently been a number of significant developments in relation to schemes of arrangement. These include:
- the Federal Court refusing to make orders convening a meeting of CSR’s shareholders to vote on a demerger proposal by way of scheme, on public policy and commercial morality grounds relating to CSR’s potential asbestos liabilities
- the Government’s corporate law advisory body recommending significant reforms to the scheme regime, and
- developments regarding ‘hostile schemes’.
Each of these developments is discussed below.