商事合同中通常会订有合同解除条款，比如满足约定条件或情形下，一方得以解除合同的单方解除条款。单方解除条款系商事主体在一定情形下为脱离合同而预先设置的退出机制，它保证了商事主体的意思自治，同时避免了各方受到已无价值的合同关系的拖累。近几年来，受经济大环境的影响，不少商事主体的经营遭遇困难，破产成为企业面临的高概率情形。破产不仅会影响到破产企业本身，亦会影响与破产企业签署商业合同的其他主体，例如，在《企业破产法》（“《破产法》”）第十八条的规定下，前述单方解除权的行使就会受到一定限制。在本文中，我们将提示和阐释该限制，并提出相应的解决方案与风险防范措施。
一、合同约定解除权
一份完整的合同通常会约定合同解除的条款，通常包括双方协商一致解除合同，以及约定条件下一方单方解除合同。关于单方解除合同条款，一般会有类似以下的约定：
“当一方进入破产程序、破产重整、清盘、资不抵债或其它类似的法律程序时，另一方有权立即书面通知对方解除合同。”
Welcome to the eighth edition of our quarterly disputes newsletter, which covers key developments in the dispute resolution world over the last three months or so.
In a judgment rendered on 10 October 2021, the Dubai Court of First Instance had concluded that current and former directors and managers of Marka were personally liable towards creditors of the company merely on the basis that the assets of the company were not sufficient to pay at least 20% of its debts. The 20% threshold was set in onshore Federal Decree Law No. (9) of 2016 on Bankruptcy (the Bankruptcy Law) as it then was, and the Court determined that liability applied to current and former directors and managers without distinction where the threshold is not met.
Since 1 October 2022, the Singapore International Commercial Court now has jurisdiction to hear cross-border restructuring and insolvency matters. In addition, foreign lawyers may be appointed to make submissions in restructuring and insolvency proceedings in the SICC. Lawyers may even enter into conditional fee agreements with their clients for selected proceedings provided that certain safeguards are met.
On 5 October 2022, the Supreme Court of the United Kingdom (UKSC) delivered a landmark judgment regarding directors’ duties in an insolvency context. In BTI 2014 LLC v Sequana S.A. [2022] UKSC 25, the UKSC considered the circumstances in which directors must have regard to the interests of creditors when exercising duties owed to the company and what obligations that imposes on directors.
The Insolvency and Companies Court has recognised Chapter 11 Proceedings in the US in respect of the manufacturer of controversial surgical mesh products which have generated a significant number of claims worldwide. The British Claimants have had their claims stayed as a result of this recognition.
Re Astora Women’s Health LLC [2022] EWHC 2412 (Ch)
What are the practical implications of this case?
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.
In a new ruling, the UK Supreme Court concluded that the rule applies only when a company is "insolvent or bordering on insolvency".
On 5 October 2022, the UK Supreme Court handed down judgment in BTI 2014 LLC v. Sequana SA and others (Sequana)1. The case required the court to reconcile differing judicial pronouncements of the "creditors' interest rule" (the Rule) and consider the following questions:
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.
Introduction