While there is a statutory requirement to register most forms of security granted by limited companies incorporated in the UK at Companies House, it is worth remembering that there is no statutory requirement for the holder of registered security to inform Companies House if, e.g., the debt secured by a registered charge has been satisfied.

Summary

In the first appeal of a restructuring plan under Part 26A Companies Act 2006, the English Court of Appeal unanimously set aside the first instance decision sanctioning the plan proposed by AGPS BondCo PLC, part of the Adler real estate group¹.

Established in 2015 as a trusted neutral forum to meet increasing demand for effective transnational dispute resolution, the Singapore International Commercial Court (the "SICC") is a division of the General Division of the High Court and part of the Supreme Court of Singapore. On January 18, 2024, the SICC handed down its first insolvency-related ruling.

The High Court has handed down an important decision confirming that an unrecognised foreign judgment can be used to form the basis of a bankruptcy petition.

In rejecting the bankrupt’s appeal, the court confirmed that a debt arising pursuant to such a judgment is capable of constituting a “debt” for the purposes of section 267 Insolvency Act 1986 (the Act), despite the fact that the underlying judgment had not been the subject of recognition proceedings in England.

Facts

引言

自2022年5月起，上市公司“携带”未到期可转债进入预重整或重整程序的案例逐步在A股视野中涌现。截至目前，重整计划成功执行并顺利处置可转债违约风险的只有*ST正邦（002157）和*ST全筑（603030）两个案例。作为一种上市公司破产重整领域的新兴产品，由于可转债具有债权性、股权性和二级市场可交易等特点，较重整中的其他普通债权更具特殊性，给上市公司破产重整提出了“新课题”，应当在重整中进行定制化处理。

可转债在上市公司破产重整中的处理方式保持了其作为金融工具“进可攻，退可守”的特点，债券持有人可以选择到期兑付、转卖或转股。因此，重整方案设计中最为核心的是保护可转债原持有人在可转债产品项下的合法权利。通常做法为保留可转债持有人一定期限的交易及转股权利，利用可转债的特殊规则为持有人做好权利保护衔接，实现上市公司与持有人的利益共赢。

本文谨从可转债的特殊性及权利保护措施、实践中主要案例总结及重整方案设计要点等三个方面展开，对存续可转债在上市公司破产重整中的处理方式进行总结和探讨。

一、可转债的特殊性及权利保护

（一）可转债的特殊性

Ever since unpaid taxes due to HMRC were “crammed down” pursuant to a restructuring plan that it voted against but did not actively oppose in Houst,¹ HMRC has challenged restructuring plans and asserted its interests more aggressively, causing the failure of restructuring plans inNasmyth

On January 23, 2024, the Court of Appeal in England and Wales (the "Appeal Court") upheld a challenge launched by dissenting creditors to overturn the UK Restructuring Plan (the "RP") of the Adler Group previously approved by the High Court under Part 26A of the Companies Act 2006 (Strategic Value Capital Solutions Master Fund LP and others v AGPS BondCo PLC [2024] EWCA Civ 24).

It’s been a difficult last few years for the licensed trade and the hospitality and leisure sector generally, both in terms of recovery from the Covid-19 pandemic and, more recently, the wider economic challenges facing the industry.

The threat of insolvency looms large and with it comes various regulatory considerations for insolvency practitioners (IPs): firstly, liquor licensing considerations that might arise post-appointment and, secondly, broader health and safety issues that can shift into sharp focus.

Premises licences

The Bankruptcy Code invalidates "ipso facto" clauses in executory contracts or unexpired leases that purport to modify or terminate the contract or lease (or the debtor's rights or obligations under the contract or lease) based solely on the debtor's financial condition or the commencement of a bankruptcy case for the debtor. It also invalidates state law, rather than a contract, that purports to alter the property interests of the debtor. A more difficult situation arises when those interests are on the outer bounds of "property of the estate."

The Bankruptcy Code provides that, in chapter 11 cases where the court does not find "cause" for the appointment of a trustee, the court "shall" appoint an examiner, upon a request from the Office of the U.S. Trustee (the "UST") or any party-in-interest prior to confirmation of a chapter 11 plan. The examiner's role is to investigate the debtor's affairs or allegations of management misconduct, if either: (i) the court determines that the appointment would be in the best interests of stakeholders and the estate; or (ii) the debtor has qualifying unsecured debt exceeding $5 million.