September, 2023 For Private Circulation - Educational & Informational Purpose Only A BRIEFING ON LEGAL MATTERS OF CURRENT INTEREST KEY HIGHLIGHTS * Bombay High Court: Secured creditor may initiate recovery proceedings against secured asset owned by guarantor even if principal borrower is placed under moratorium. ⁎ Calcutta High Court: Application for removal of arbitrator must be made before the same court as envisaged in Sections 2(i)(e) and 42 of the Arbitration and Conciliation Act, 1996.
It has been an interesting year-to-date in the Asia Pacific1 Region, particularly in the Mainland2 and Hong Kong3 as the Region has pivoted from COVID-zero to reopening its borders to the world. Given the number of larger scale Mainland property-related restructurings that were promulgated during the pandemic it is fair to say that at least amongst some in the profession, there were great (restructuring) expectations of 2023. This next wave of restructurings has not yet eventuated. Why?
Asia restructuring considerations & observations
一、背景介绍
本案1中的被告、破产债务人美国航运公司（United States Lines Inc.，以下简称 USL）在世界各地长期经营庞大的海运业务。公司在美国特拉华州注册成立，后将业务拓展到英国，控股公司为在纽约注册的麦克莱恩工业公司（McLean Industries Inc.）。1986年，USL根据《美国破产法》第11章的规定，于11月24日提出破产申请。同日，美国纽约南区的地方破产法庭（以下简称美国破产法庭）的布施曼（Buschman）法官作出临时禁令并指定债务人托管人。USL的申请内容显示：公司资产共计12.5亿美元，总债务为12.72亿美元，负债金额超过资产的102%。而在英国，其欠下的总债务（已经清算的债务）达到243.4万英镑（包括拖欠原告的债务），资产约为72万英镑，债务超过资产的3倍，严重资不抵债。鉴于此，USL根据《美国破产法》第11章的规定进行重整，并计划完全关闭公司在英国和欧洲的运营。
In this week’s TGIF, we consider ASIC v Bettles [2023] FCA 975 and ASIC v Jones [2023] WASCA 130, two cases which bring into focus the conduct of insolvency practitioners and alleged abrogation of their duties and independence.
Key takeaways
When a company is in the so-called “twilight zone” approaching insolvency, it is well-established that the directors’ fiduciary duties require them to take into account interest of creditors (the so-called “creditor duty”).
Canadian insolvency law currently offers little protection to perishable fruits and vegetable suppliers (Produce Supplier) in the event of an insolvency or bankruptcy of a purchaser of such products.
Here’s my take on third-party releases in a bankruptcy plan [not that anyone asked]:
Nuo Ji, Lingqi Wang, Jessica Li and Sylvia Zhang, Fangda Partners
This is an extract from the 2024 edition of GRR's The Asia-Pacific Restructuring Review. The whole publication is available here.
In summary
Hajime Ueno, Masaru Shibahara and Kotaro Fuji, Nishimura & Asahi
This is an extract from the 2024 edition of GRR's The Asia-Pacific Restructuring Review. The whole publication is available here.
This is an Insight article, written by a selected partner as part of GRR's co-published content. Read more on Insight
In earlier posts, the Red Zone has discussed the Supreme Court’s ruling in Siegel v. Fitzgerald, 142 S. Ct. 1770 (2022), which held that increased U.S.