When the restructuring officer regime was introduced, it was assumed by many that joint provisional liquidators would no longer be appointed for restructuring purposes, having been overtaken by the new regime.  The recent decision of Re Kingkey Financial International (Holdings) Ltd suggests that this assumption may not be sound.  It also raises several interesting points regarding the restructuring officer regime that merit further consideration.  This article considers the Kingkey case, and the points arising from it

In my most recent blog post, I provided some tips for creditors who find themselves in the Subchapter V arena. This is somewhat of a follow-up to that one.

ICC Judge Mullen’s judgment in Sriram v Revenue & Customs & Anor [2024] EWHC 853 (Ch) follows an application by the bankrupt, Ms Sriram, to annul a bankruptcy order made against her on a petition of HMRC in circumstances in which proper service of both the statutory demand and the petition was contested and in which her capacity to understand the proceedings against her was also in issue.

Under sections 90-15 and 90–20 of Schedule 2 of the Insolvency Practice Schedule (Corporations) (Practice Schedule) of the Corporations Act 2001 (Cth) (the Act), a liquidator may apply to the court for directions and judicial advice in winding up.

Purpose of Judicial Advice

The purpose of judicial advice was to give the liquidator advice as to the proper course of action to take in the liquidation, as noted by Goldberg J in Re Ansett Australia Ltd and Korda [2002] FCA 90 (Ansett).

In Re Simplicity & Vogue Retailing (HK) Co., Limited[2024] HKCA 299, the Court of Appeal (Kwan VP, Barma and G Lam JJA) held that the approach regarding exclusive jurisdiction clauses in bankruptcy proceedings laid down by the Court of Final Appeal in Re Lam Kwok Hung Guy, ex p Tor Asia Credit Master Fund LP (2023) 26 HKCFAR 119 (“Guy Lam CFA”) (upholding the Court of Appeal’s judgm

Bankruptcies with large tort claims are common:

• some involve a limited number of claimants (e.g., a drunk driver hits a bus or a restaurant serves bad food one evening); and
• others have large numbers of claimants, some of whom won’t even be known for at least another decade (e.g., asbestos cases).

Often in tort bankruptcies, the total amount of claims overwhelms the debtor’s ability to pay: i.e., existing assets, insurance coverages and projected future income streams are, simply, insufficient.

1. Introducción

En la edición de este mes de abril destacamos la ya famosa sentencia de la Audiencia Provincial de Valencia del 27 de marzo que declara la ineficacia total del plan de restructuración de Das Photonic, S.L.

Sobre esta sentencia se ha hablado mucho porque es la primera declaración de ineficacia de un plan de restructuración.

La sentencia tiene casi 150 páginas pero reseñamos abajo los puntos clave de su contenido que hemos extractado porque creemos pueden servir de lección para casos futuros.

The landmark Court of Final Appeal (“CFA”) decision of Re Guy Lam[1] has generated numerous articles written by practitioners and academics on the interaction between exclusive jurisdiction clauses and the court’s jurisdiction to wind up or bankrupt a debtor. Following the CFA’s decision, the Guy Lam bankruptcy continued to impact our legal landscape when the Court of Appeal handed down a novel decision on the treatment of the costs and expenses of the bankrupt trustees (for whom TDW acted) in circumstances where the bankruptcy order was overturned in appeal[2].

The Insolvency and Bankruptcy Code, 2016 (IBC) has been at loggerheads with the Prevention of Money Laundering Act, 2002 (PMLA) on various occasions in the corporate insolvency resolution process (CIRP) of a distressed entity. Courts and tribunals have passed varying judgments, either giving primacy to the IBC or allowing the Enforcement Directorate (ED), a functionary under the PMLA, to perform its duties irrespective of the ongoing CIRP of a company.

In its recent opinion in Raymond James & Associates Inc. v. Jalbert (In re German Pellets Louisiana LLC), 23-30040, 2024 WL 339101 (5th Cir. Jan. 30, 2024), the Fifth Circuit held that a confirmed bankruptcy plan enjoined a party from asserting certain indemnification counterclaims against a plan trustee because the party did not file a proof of claim.

Background