Summary
In my earlier piece for Business Day and TimesLIVE (read here) last year, I argued that South Africa’s insolvency framework, from the enduring Insolvency Act of 1936 to the Companies Act’s business rescue provisions and the Cross-Border Insolvency Act of 2000, gives us genuine reason for pride.
A recent decision of the Supreme Court of Western Australia considered an application under Section 444GA of the Act where Administrators of a Deed of Company Arrangement sought leave to transfer the shares of an insolvent company to in circumstances where that transfer of shares would result in a return to shareholders of the insolvent company which the court referred to as “unique”.
MONTHLY NEWSLETTER ARBITRATION Rajiv Gaddh v. Subodh Parkash Civil Appeal No. of 2026(@ SLP (C) No. 4430 of 2025) M/s. MCM Worldwide Private Limited v. M/s. Construction Industry Development Council Civil Appeal No. of 2026 (@ SLP (C) No. 33075 of 2025) CIVIL LAW Reliance Eminent Trading and Commercial Private Limited v. Delhi Development Authority, Civil Appeal No. of 2026 (Arising Out of S.L.P. (Civil) No. 22100 of 2025) State Bank of India v. Amit Iron Private Limited and Others, Civil Appeal Nos. 4243-4244 of 2026 (@ Special Leave Petition (C) Nos.
- INTRODUCTION
- Cross-border insolvency proceedings routinely require courts to navigate complex questions of jurisdiction, recognition, and cooperation in circumstances where corporate structures, debtor’s assets and/or stakeholders are dispersed across multiple jurisdictions.
To those familiar with both U.S. and Australian insolvency regimes, Australia's creditors' scheme of arrangement (Scheme) may appear, at first glance, to resemble a Chapter 11 restructuring in disguise. This is because both regimes facilitate creditor compromise, allow incumbent management to remain in control, involve court supervision and rely on class-based voting structures to approve a restructuring outcome.
It is well understood that Australia's voluntary administration regime provides companies and their administrators with significant flexibility to promote business restructurings. This is in large part due to the statutory moratorium afforded to insolvent companies, allowing breathing space for the administrator to work with relevant stakeholders to promote a sale and/or restructuring via a deed of company arrangement.
In recent years, we have seen the deed of company arrangement or "DOCA" being used in Australia by sophisticated investors as a restructuring tool of choice. This is primarily due to the swiftness in which a DOCA can be implemented and its flexibility to effect a broad range of restructuring transactions with relative ease.
Imagine operating a company, only to find without any warning that the company’s bank accounts have been blocked. The immediate consequence is one of acute disruption and uncertainty. You learn that a winding-up petition has been filed against the company, triggering restrictions that effectively prevent it from carrying out ordinary financial transactions. At that point, a pressing question arises: how is the business expected to continue operating under such constraints?