December 2023
The Right of Set-off in Insolvency Proceedings
MAYER BROWN | THE RIGHT OF SET-OFF IN INSOLVENCY PROCEEDINGS
The Bankruptcy Amendment (Discharge from Bankruptcy) Bill 2023 (“Bill”) has been agreed to by both the House of Representative and the Senate and will now be presented to the Governor-General.
The Bill seeks to amend the Bankruptcy Act 1966 (Cth) (“the Act”) to provide legal certainty on the calculation of bankruptcy discharge dates, aligning the Act with current practices, by confirming that the discharge date is determined from when the Statement of Affairs is accepted, rather than when it was initially presented.
Why the change?
During summer 2023 the Swedish Government Official Report (SOU 2023:34) (the “Report”) was published proposing, inter alia, the removal of the requirements of a limited liability company to prepare a control balance sheet (Sw. Kontrollbalansräkning) and eventually enter into liquidation upon shortage of own capital. Instead, the suggestion was that the emphasis should be shifted more towards liquidity and solvency. The Report has now been through a referral process and by 15 December 2023 various referral bodies had submitted their responses to the Report.
Judgments on claims for fraudulent trading (s 213 Insolvency Act 1986) do not come along every day: they are hard to make good. A recent example is, however, that of Charles Morrison (sitting as a Deputy Judge of the High Court) in Bouchier & Anor v Booth & Anor [2023] EWHC 3195 (Ch). It runs to 281 paragraphs and covers a wide range of law and fact.
City Hall
City Council Passes Dozens of Bills, Resolutions During Last Meeting of 2023 Session
The well-publicised restructuring of the Galapagos group (the group) in 2019 spawned multiple challenges by stakeholders in the courts of a number of different jurisdictions. The latest decision of the English High Court considers the interpretation of the Distressed Disposal provision within an LMA-form intercreditor agreement (ICA) following a challenge by subordinated noteholders (the noteholders) to the validity of the release of their claims as part of the wider restructuring.
一、“集中管辖”概述
《中华人民共和国民事诉讼法》(下称“《民事诉讼法》”)中,对于“集中管辖”并无明确的规定,而在民事诉讼的司法实践中,存在许多被称为“集中管辖”的做法。实务中,“集中管辖”泛指将某类案件,依照《民事诉讼法》及其他法律法规的相关规定,以司法解释或者通知的形式,集中由某类法院或某个法院管辖的情形。
概括来说,“集中管辖”共分为如下三种情形:
(1)某类法院集中管辖某类案件,如依据《中华人民共和国企业破产法》(下称“《企业破产法》”)第二十一条的规定,破产案件中涉债务人的诉讼案件集中由受理破产申请的人民法院管辖,或者依据《全国法院审理债券纠纷案件座谈会纪要》(以下简称“《债券会议纪要》”)第十条的规定,以发行人或者增信机构为被告提起的要求依约偿付债券本息或者履行增信义务的合同纠纷案件,由发行人住所地人民法院管辖;
(2)某个法院集中管辖某一类型化案件,如各地金融法院集中管辖当地金融案件、各地知识产权法院集中管辖当地知识产权案件;
Companies in Chapter 11 must publicly report substantial financial information — indeed, more information should be reported or available publicly in Chapter 11 than outside of Chapter 11. This paper analyzes what information must be publicly reported or disclosed under the securities laws, the Bankruptcy Code and Bankruptcy Rules; what debtors do to minimize public reporting; and what creditors can do to get the public reporting they deserve.
Debtors May Stop Public Reports Under the Securities Laws.
A Members Voluntary Liquidation ("MVL") is a process undertaken by a solvent company to wind up its affairs in an orderly manner when the company has concluded its activities and the shareholders wish to distribute the remaining assets amongst themselves.
To avail of a MVL, the company must be solvent i.e. the directors must be able to execute a statutory declaration that they are of the opinion that the company will be able to pay its debts in full within 12 months of the commencement of the winding up.
The steps involved