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What does today's Sequana decision mean for directors?
2022-10-05

Background

On 5 October 2022, the Supreme Court handed down its long-awaited judgment in BTI 2014 LLC v. Sequana S.A. [2022] UKSC 25 concerning the trigger point at which directors must have regard to the interests of creditors pursuant to s.172(3) of the Companies Act 2006 (the "creditors' interests duty").

Filed under:
European Union, United Kingdom, Insolvency & Restructuring, Litigation, Public, Dentons, Brexit, Supply chain, Coronavirus, Insolvency, UK Supreme Court
Authors:
Tessa Blank , Neil Griffiths , Luci Mitchell-Fry , Ian Fox , Celia Hayward , Richard Pallot-Cook
Location:
European Union, United Kingdom
Firm:
Dentons
View Original Article
Moving in unity - Hong Kong court does away with deed of contribution requirement in sanctioning guarantor's scheme
2022-12-08

In Re Unity Group Holdings International Ltd [2022] HKCFI 3419, the Hong Kong court has for the first time sanctioned a scheme of arrangement that releases debts of third-party obligors that were guaranteed by the scheme company without requiring a deed of contribution. The Honourable Mr. Justice Harris deviated from the English law approach and ruled that a deed of contribution will no longer be necessary for the release of a principal obligor's liability that has been guaranteed by the scheme company.

A going concern

Filed under:
Hong Kong, Insolvency & Restructuring, Litigation, Hogan Lovells
Authors:
Jonathan Leitch , Carol Hartopp , Wei Lun Koh , Nigel Sharman
Location:
Hong Kong
Firm:
Hogan Lovells
View Original Article
ISDA Master Agreement: When does an event of default cease to be 'continuing', and what is an 'arrangement'?
2022-10-28

The 11 October 50-page judgment of Hildyard J in The joint administrators of Lehman Brothers International (Europe) v FR Acquisitions Corporation (Europe) and JFB Firth Rixson will interest not only those who deal with ISDA Master Agreements (who may want to read the entire judgment), but also many lawyers and financial and commercial institutions. This is because the events of default which it had to consider, and especially the meaning of the word “continuing” in this context, are relevant to bonds, loans and various commercial contracts.

Filed under:
United Kingdom, Derivatives, Insolvency & Restructuring, Litigation, DLA Piper, International Swaps and Derivatives Association
Authors:
Mark Daley , Peter Manley
Location:
United Kingdom
Firm:
DLA Piper
View Original Article
Ontario Court of Appeal: A debtor's assurances may prolong the discoverability of a creditor's claim for non-payment
2022-08-23

Understanding limitation periods are of crucial importance in the construction industry, particularly when a contractor is faced with unpaid invoices for services or materials rendered. The Ontario Court of Appeal stepped back into the spotlight in this regard with its decision in Thermal Exchange Service Inc. v Metropolitan Toronto Condominium Corporation No. 1289, 2022 ONCA 186, in holding that a defendant's assurances may prolong the "discoverability" of a claim for non-payment.

Background

Filed under:
Canada, Ontario, Insolvency & Restructuring, Litigation, Gowling WLG, Court of Appeal for Ontario
Authors:
Sahil Shoor , Michael Piaseczny
Location:
Canada
Firm:
Gowling WLG
View Original Article
Bankruptcy Standing: An Introduction to a Multitude and a Preview of Coming Attractions
2023-03-22

In legal parlance, the term “standing” embraces several discrete doctrines that govern the capacity of a party to sue and appear before a particular court. These concepts' fluidity should not obscure their importance: a party’s standing is a perpetual jurisdictional question, open to review throughout the lifespan of a particular case or matter and at every appellate level.

Types of Standing

Two Generally Applicable Forms

Filed under:
USA, Insolvency & Restructuring, Litigation, Reed Smith LLP, Supreme Court of the United States
Location:
USA
Firm:
Reed Smith LLP
View Original Article
Significant insolvent trading decision in the UK Supreme Court - creditors' interests in the twilight zone
2022-10-11

The United Kingdom Supreme Court has just released an important insolvency judgment in BTI 2014 LLC v Sequana SA [2022] UKSC 25 (Sequana), which concerns when and the extent to which directors of a company must consider the interests of creditors.

Filed under:
New Zealand, United Kingdom, Company & Commercial, Insolvency & Restructuring, Litigation, Buddle Findlay, Insolvency, UK Supreme Court
Authors:
Scott Barker , Luke Sizer
Location:
New Zealand, United Kingdom
Firm:
Buddle Findlay
View Original Article
Significant insolvent trading decision in the UK Supreme Court - creditors' interests in the twilight zone
2022-10-11

The United Kingdom Supreme Court has just released an important insolvency judgment in BTI 2014 LLC v Sequana SA [2022] UKSC 25 (Sequana), which concerns when and the extent to which directors of a company must consider the interests of creditors.

Filed under:
United Kingdom, Company & Commercial, Insolvency & Restructuring, Litigation, Buddle Findlay, Insolvency
Authors:
Scott Barker , Luke Sizer
Location:
United Kingdom
Firm:
Buddle Findlay
View Original Article
Sequana: Directors' Duties in a Distressed Landscape
2023-02-02

In Short

The Situation: Directors in England and Wales owe duties to the companies to which they are appointed (and may face personal liability for breaching such duties). Although the Companies Act 2006 obliges directors to maximise value for a company's shareholders, case law has suggested that directors should act in the interests of a company's creditors if a company becomes distressed.

Filed under:
United Kingdom, Company & Commercial, Insolvency & Restructuring, Litigation, Jones Day, Insolvency
Authors:
David Harding , Ben Larkin
Location:
United Kingdom
Firm:
Jones Day
View Original Article
German D&O insurers avoid coverage of directors' liabilities in insolvencies
2023-03-16

Under German law, company directors have a statutory duty to file for insolvency once the company has become insolvent or over-indebted. Company directors can be held personally liable for any payments they make after that point of time unless they prove that they exercised reasonable care, skill and diligence. After the German Federal Court of Justice (Bundesgerichtshof) clarified that standard terms and conditions of German D&O insurance contracts cover this directors’ liability, many D&O insurers have tried to find new ways to avoid their coverage.

Filed under:
Germany, Company & Commercial, Insolvency & Restructuring, Insurance, Litigation, Taylor Wessing, Insolvency, Federal Court of Justice
Authors:
Leopold Bauer
Location:
Germany
Firm:
Taylor Wessing
View Original Article
HSBC's acquisition of Silicon Valley Bank UK
2023-03-15

After a turbulent weekend, the news on Monday morning that HSBC had acquired Silicon Valley Bank UK (SVB UK) caused the UK tech community to breathe a huge sigh of relief.

It was also a very different outcome to the one that seemed destined on Friday when the Bank of England announced it intended to put SVB UK into a bank insolvency procedure.

Filed under:
United Kingdom, Banking, Corporate Finance/M&A, Insolvency & Restructuring, Litigation, Taylor Wessing, Insolvency, HSBC, Bank of England, Silicon Valley Bank
Authors:
Gabriel Estevez , Angus Miln
Location:
United Kingdom
Firm:
Taylor Wessing
View Original Article

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