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

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]

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.

１ 東京地裁「倒産部」に（2022年4月

東京地裁では、2022年3月まで、長年にわたり、破産・民事 再生は民事20部（破産再生部）、会社２ ビジネス・コート（2022年10月）更生は民事8部（商事 部）によって事件処理がなされてきましたが、同年 4月より、会 社更生、特別清算及び外国倒産処理手続承認援助事件等 が民事8部から民事20部に移管され、民事20部の名称も「破 産再生部」から「倒産部」に変更¹ されました²。

民事再生と会社更生はともに再建型の倒産手続であり、手 続が類似しているところもあることから、会社更生が民事20部 に移管されたことに伴い、従前の会社更生の実務運用が変わ ることも考えられるものの、民事20部としては、当面は民事8部 の運用を承継しつつ、破産・再生事件の運用状況も踏まえ て、利用者が利用しやすい、公正・適正性を担保した円滑な 手続運用を継続的に検討していく³ 、とされていることから、当 面は運用が大きく変わることはないと思われます。

The Law on the Temporary Adaption of Restructuring and Insolvency Law Provisions to Mitigate the Consequences of the Crisis (SanInsKG) was published in the German Federal Gazette (Bundesanzeiger) today (8 November 2022) and will become effective in German law tomorrow (9 November 2022), following a very quick legislative process.

Purpose of the SanInsKG

SanInsKG is intended to address the difficulty of companies assessing their solvency in the current economic climate.