The Dutch Act implementing the EU Directive on Insolvency, Restructuring and Second Chance (the Restructuring Directive) enters into force on 1 January 2023 and will amend the current Act on Court Confirmation of a Private Restructuring Plan (the WHOA) to some extent. Below we have set out some of the material changes as a result of the implementation.
A preventive restructuring framework and second chance
It has often been said that the route of winding up a company is the remedy of last resort in a creditor’s odyssey to recover a debt owed to it. This is as not only would the granting of a winding up order have drastic repercussions for the debtor company, but there is also no guarantee that the creditor would be able to recover the full debt thereafter.
On October 12, the Honorable Robert D. Drain, U.S. Bankruptcy Judge for the Southern District of New York, issued his final decision from the bench in the bankruptcy cases of supermarket chain Tops Holdings II Corporation (“Tops”). The decision came in an adversary proceeding seeking to avoid four dividend payments totaling $375 million from 2009–2013 paid to the Tops’ private equity investors (the “PE Group”) as constructive and actual fraudulent transfers and also hold the director-defendants responsible for breaching their fiduciary duties.
The restructuring of Hong Kong Airlines has been approved. It is the first time that a parallel English Restructuring Plan and Hong Kong Scheme of Arrangement have successfully been used to restructure Hong Kong, PRC and English law-governed debts.
For the background to the restructuring and details of the plan and scheme, please see our article here.
In October 2022, the Privy Council delivered its judgment in the Z Trust case of Equity Trust (Jersey) Ltd (Respondent) v Halabi (in his capacity as Executor of the Estate of the late Mdam Intisar Nouri) (Jersey)which was consolidated with ITG Ltd and others (Respondents) v Fort Trustees Ltd and another (Appellants) (Guernsey).The Privy Council considered the nature and scope of the right of a former trustee to recover from or be indemnified out of assets of an insolvent trust in respect of liabilities and other expenditures proper
Further to our previous article, which can be found here, we consider the key issues with which the Court faced, the technical legal analysis underpinning this judgment and our view on what this may mean for energy suppliers, and the sector as a whole, looking forward.
Background - what was the application and why was it needed?
By recognising the state government as a secured creditor, the Rainbow Papers judgment exposes the Insolvency and Bankruptcy Code to incongruous uncertainty
This week’s TGIF considers a recent case where a liquidator obtained judicial advice to commence proceedings against a director and related company concerning the unlawful receipt and use of trust money.
Key takeaways
The Hon’ble Delhi High Court (“Delhi HC”) in Insolvency and Bankruptcy Board of India vs State Bank of India & Ors. has held that the National Company Law Tribunal (“NCLT”) cannot assume to itself the power of declaring any provision of the Insolvency and Bankruptcy Code, 2016 (“IBC”) or the Insolvency and Bankruptcy Board of India (Insolvency Resolution Process for Corporate Persons) Regulations, 2016 (“CIRP Regulations”) as illegal or ultra vires.
In East-West Logistics LLP v Melars Group Ltd [2022] EWCA Civ 1419 the Court of Appeal once again considered the test for establishing the location of a debtor's centre of main interests (COMI) for the purposes of the Recast Regulation on Insolvency Proceedings 2015/848. The case was a second appeal considering whether to uphold the dismissal of a winding up order on the grounds that the debtor's COMI was not in the United Kingdom.