The original version of this article was first published in the Trilegal Quarterly Roundup
Picture this: You are wrapping up writing a brief, memorandum of law, motion or the like regarding a complex bankruptcy issue. It is a close call, and you are grasping for additional arguments to make to the judge. Now ask yourself: Have I discussed the relevant burden of proof? If not, now ask yourself: Whose burden is it anyway?
Introduction:
Lenders Beware: Security Vulnerable as an unreasonable director-related transaction
Cooper as Liquidator of Runtong Investment and Development Pty Limited) v CEG Director Securities Pty Limited [2024] FCA 6. ("CEG")
Since the first Johnson & Johnson talc bankruptcy was filed in 2021, Judge Michael Kaplan has faced countless disagreements in the US Bankruptcy Court. These range from discovery fights, disputes over administration of tens of thousands of individual claims and all-out conflict over the total amount in controversy.
2023 was a year of political and economic uncertainty in Thailand, especially for the Thai stock market, when a number of companies in financial distress aggressively sought rescue by engaging in a formal court-supervised restructuring process (known as “Rehabilitation Proceedings”). This trend is expected to continue in 2024.
2023 Key Takeaways
As 2023 ends and insolvency rates hit worrying new highs, any suggestion that there is light at the end of the UK’s economic tunnel is not supported by the statistics. We look at what may lie ahead for the restructuring and insolvency sector next year.
In its recent German Pellets decision, the Fifth Circuit held that a creditor could not assert its indemnification defenses in a suit brought by the trustee of a liquidation trust because the Chapter 11 plan’s express language permanently enjoined the defenses and the creditor chose not to participate in the debtor’s bankruptcy despite having actual knowledge of it.
When Part 26A of the Companies Act was introduced in 2020, the Government deliberately modelled the legislation on Part 26, with the view that the new regime (and the advisers and judges seeking to navigate it) would benefit from piggy-backing on over a century’s worth of case law relating to schemes of arrangement.
The principles outlined in the European Commission's proposal for a Directive harmonising certain aspects of insolvency law is not expected to lead to extensive reform of Belgian rules since Belgian law already provides a clear set of rules that give creditors and trustees instruments to avoid contestable acts in the context of bankruptcy, which, in some cases, go further than the principles set out in this Proposal.