Directors of Australian companies face significant personal monetary – and potential criminal and adverse professional – consequences if they allow the company to trade whilst insolvent.

Australian insolvent trading laws are harsher, and more frequently utilised to prosecute directors personally, than in many other jurisdictions including in the US and the UK.

Accordingly, frequent assessment of a company's solvency by its directors is crucial, particularly in financially difficult times, as are active steps to address any potential insolvency.

Introduction

In the recent case of Atlas Equifin Pte Ltd v Electronic Cash and Payment Solutions (S) Pte Ltd (Andy Lim and others, non-parties) [2022] SGHC 258 (“Atlas Equifin”), the Singapore High Court had the opportunity to consider the unexplored issue of whether shareholders/ contributories have legal standing to oppose a creditor’s winding up application.

Facts

Summary

Once again, since spring 2020, the German legislator is adapting fundamental provisions of German insolvency law. Find out here what this is about and what implications the changes have for enterprises.

At the beginning of the COVID-19 pandemic, the obligation for businesses in Germany to file for insolvency was temporarily suspended by the COVID-19 Insolvency Suspension Act (COVInsAG). Accompanied by financial support measures, the German government wanted to counter the economic effects of the pandemic and enable companies to survive.

External administrators often occupy quasi-judicial offices which, among other things, require them to:

Over the past decade there has been an influx of small- and medium-sized entrants to the U.K. gas supplier market, which is supervised by Great Britain's[1] independent energy regulator, the Office of Gas and Electricity Markets (Ofgem).[2] According to Ofgem, this market development had the effect of increasing price competition and putting pressure on incumbent suppliers to improve customer service for consumers.[3]

As a service to our clients, we have prepared this compendium of the Insolvency Act, 2003 together with related regulations and rules, incorporating all amendments to date.

This version of the compendium takes into account changes and updates to the legislation as set out in the recent revisions.

The Supreme Court, in a key judgment handed down on 5 October 2022 (BTI 2014 LLC v Sequana SA and others [2022] UKSC 25), has provided some important clarification around the scope of directors’ duties in the context of companies that are nearing insolvency.

Factual background

The High Court of England and Wales has recently provided welcome clarification around the nature of events of default under derivatives contracts governed by the ISDA Master Agreement, in particular in relation to whether an insolvency related event of default can be cured and so cease to be continuing. This brings to an end a long running debate around the extent to which, and for how long, a party can continue to rely on the condition precedent to payment contained in the ISDA framework documentation where the other party is subject to such an event of default.

Insolvency practitioners (IPs) often occupy quasi-judicial offices which, among other things, require them to, assess and adjudicate on competing claims, take coercive and enforcement actions and complete potentially contentious transactions. They must discharge their legal and equitable duties whilst maintaining objectivity and, whilst recognising and appropriately balancing the interests of a diverse range of stakeholders.

Introduction

On 5 October 2022, the UK Supreme Court delivered its long-awaited judgment in BTI 2014 LLC v. Sequana SA and others [2022] UKSC 25 ("Sequana Case") which concerns the question of the trigger point when directors must have regard to the interests of creditors ("Creditor Duty"). This case raised questions of considerable importance for Malaysian company law.