Legal nature of a keepwell deed

Keepwell deeds are widely used in offshore financing transactions, but such arrangement has only been tested in the PRC courts in recent years. In this alert, we explore issues relevant to the enforceability of such arrangements in Mainland China.

On 22 July 2022, judgment was handed down in relation to the sanction of the first Part 26A restructuring plan to be proposed by a small–medium enterprise (SME) in Re Houst Limited [2022] EWHC 1941 (Ch). The restructuring plan (RP) procedure set out in Part 26A of the Companies Act 2006 (CA 2006) has been widely considered to be out of the reach of SMEs due to excessive cost. The decision is also an interesting one for other reasons, notably the cram-down of HMRC as a dissenting creditor.

Under the Insolvency and Bankruptcy Code, 2016 (Code), a financial creditor may initiate corporate insolvency resolution process (CIRP) if there is a default of INR 10 million, by filing an application before the National Company Law Tribunal (NCLT). The settled principle is that an application made by a financial creditor under the Code must be admitted and CIRP initiates against the corporate debtor, if the NCLT is satisfied that a default has occurred in payment of debt.

Introduction

Section 819 of the Companies Act 2014 operates to restrict directors of insolvent companies from being appointed or acting as a director or secretary of a company and from being concerned in or taking part in the formation or promotion of a company. Any director who falls foul of s.819 is subject to a mandatory period of restriction of 5 years. The primary purpose of s. 819 is to protect the public from persons who, by their conduct, have proven themselves unfit to hold the office and discharge the duties of a director.

The Insolvency Law Senate of the Federal Labour Court (Bundesarbeitsgericht, BAG) was again asked to provide a clear answer to this pivotal question on 25 May 2022 (Case No. 6 AZR 497/21). The case concerned an action for annulment taken by the insolvency administrator against a payment received by an employee from their insolvent employer. The insolvency administrator was tasked with administering and disposing of the assets of the insolvent employer.

In brief

In Chan WS and Chan CNP v. CC Bank [2022] HKCA 1037 ("CA Decision"), the Court of Appeal (CA) recently overturned a decision in the Court of First Instance (CFI) to set aside two statutory demands (SDs) on the ground of overstatement of the debt in the SDs ("CFI Decision").

BUSINESS RESTRUCTURING REVIEW VOL. 21 • NO. 4 JULY–AUGUST 2022 1 IN THIS ISSUE 1 U.S.

For background on the Act and the National Security and Investment (NSI) regime, please see our November 2020 Client Alert, August 2021 Client Alert, and

Introduction

On June 27, 2022, the U.S. Supreme Court granted certiorari inMOAC Mall Holdings LLC v. Transform Holdco LLC (21-1270) to resolve a Circuit split over whether section 363(m) of the Bankruptcy Code limits appellate jurisdiction over bankruptcy sale orders or simply limits the appellant’s remedies on such appeals. Given the now decades-long trend toward resolving Chapter 11 cases through asset sales, including assignments of leases and contracts, the Supreme Court’s decision may provide clarity to a vitally important part of modern Chapter 11 practice.