Recent conflicting judgments of the National Company Law Tribunal (NCLT) and the High Courts had given rise to ambiguity regarding the jurisdiction of NCLT vis-à-vis personal guarantors under the Insolvency and Bankruptcy Code, 2016 (Code).
根据全国人大常委会执法检查组关于检查企业破产法实施情况的报告，党的十八大以来，随着供给侧结构性改革持续深化，加快建立和完善市场主体挽救和退出机制，加之新冠肺炎疫情对于宏观经济运行的深刻影响，我国企业破产案件数量快速上升，2017年至2020年受理和审结的破产案件分别占到《企业破产法》实施以来案件总量的54%和41%。[1]区别于传统的中小企业破产重整，大型或超大型企业集团的资产结构复杂、债务规模巨大、历史遗留问题众多，进入破产重整程序之后，如何在《企业破产法》的框架下实现资产重组与债务清偿、持续运营与杠杆处置、重整效率与债权人保护等多重利益关系的合理平衡，成为破产实务中的难点与痛点。随着2021年B集团实质合并重整案（以下简称“B集团重整案”）和海航集团等三百二十一家公司实质合并重整案（以下简称“海航集团重整案”）中信托计划的引入，破产重整程序中引入信托计划作为新型破产重整模式引起业界关注。本文将结合笔者在破产重整程序中设立信托计划的服务经验，简要介绍破产重整程序中信托计划定位与架构、信托机制与破产重整程序的衔接等相关实务难点问题，以供参考。
一. 破产重整程序中信托计划的概念和优势
In a recent decision,1 the Grand Court of the Cayman Islands considered the approach the Court will take when reviewing official liquidators' fees, the extent to which the Wednesbury reasonableness test is relevant and the need to file sufficient evidence in advance of the fee approval application hearing.
The Insolvency Practice Rules (Corporations) Amendment (Virtual Meetings and Electronic Communications) Rules 2022 (the Rules) came into effect on 11 February 2022.
The Rules are made under the Corporations Act 2001 (Cth).
The United States District Court for the Western District of New York recently upheld the findings of a Bankruptcy Court, which held that the in rem tax foreclosure of the subject property was a fraudulent conveyance. SeeDuvall v. Cty. of Ont., 2021 U.S. Dist. LEXIS 216970 (W.D.N.Y. 2021). The matter arose from the tax foreclosure of property (the “Property”) for the non-payment of taxes arising in 2015. In October 2016, the County issued a foreclosure petition and notices, advising that interested parties had the right to redeem the Property on or before January 13, 2017.
Introduction
In the case of Stanford International Bank Ltd (in liquidation) v HSBC Bank PLC [2021] EWCA Civ 535, which concerns a negligence claim for breach of Quincecare duty and dishonest assistance against the defendant bank, the English Court of Appeal (“CA”) unanimously found in favour of HSBC Bank plc (“HSBC”) and struck out both claims.
Background
Introduction
The success of a scheme of arrangement in restructuring depends largely on the consent of the requisite statutory majority of the scheme creditors. To incentivise the creditors to commit to the proposal at an early stage, scheme companies may seek to enter into a lock-up agreement with the creditor, in which the creditor provides an undertaking to vote in favour of the scheme in exchange for certain benefits, such as consent fees.
Introduction
In this case, Re Kobian Pte Ltd (OS 1269 / 2020 in the Singapore High Court), Kobian Pte Ltd applied to the Singapore High Court for a moratorium to propose a scheme of arrangement with its creditors. The legal issues at stake were the necessary conditions to be fulfilled by an Applicant in order to obtain a moratorium under section 64 of the Insolvency, Restructuring and Dissolution Act 2018 (IRDA).
The Corporate Insolvency and Governance Act 2020 (Coronavirus) (Extension of the Relevant Period) Regulations 2020 (SI 2020/1031) which allowed a temporary relaxation for companies to hold a virtual annual general meeting (AGM) is no longer in force.