The German Federal Court of Justice was recently asked to decide whether a waiver in favour of company director had been validated by the preliminary insolvency administrator's consent.

Background

On 11 February 2021, the English High Court confirmed in gategroup Guarantee Limited that restructuring plans are insolvency proceedings so are not covered by the Lugano Convention.

One of the debt instruments subject to the gategroup restructuring plan contains an exclusive Swiss court jurisdiction clause. Under the Lugano Convention, proceedings relating to "civil and commercial matters" must generally be brought in the jurisdiction benefitting from the exclusive jurisdiction clause.

Background

In Re North Point Global Ltd, the liquidators of a subsidiary submitted a proof in the CVA of the parent company based upon a claim that certain payments made by the parent to the subsidiary were unlawful preferences. Notably, when the parent's CVA came into effect, the liquidators of the subsidiary had not been appointed.

This was a Court of Appeal decision which focused on s423 Insolvency Act 1986, as well as the ambit of directors' duties to creditors in a distressed company scenario. The below summary relates to the courts' analysis of the latter issue.

Facts

Appleton Papers Inc (API) was a wholly owned subsidiary of BAT Industries plc (BAT).

Key points

• Once clear that an action is improperly constituted, it should not be allowed to proceed.

• Those in control of a company have the duty to manage that company in accordance with its constitution.

The Facts

According to a ruling by the German Federal Court of Justice (BGH) on 5 May 2022, a passenger's claim for reimbursement due to a flight cancellation in insolvency needs to be established in the schedule of creditors, otherwise it remains a claim for air transport that cannot be enforced in insolvency proceedings if the flight was booked and paid for before the insolvency proceedings.

In John Doyle Construction v Erith Contractors, the Court of Appeal has further considered the interrelation of insolvency and adjudication, providing guidance on the circumstances in which an adjudication award might be enforceable by a company in liquidation.

The key takeaways

Jurisdiction

Austria is gearing up to implement the EU Directive on Restructuring and Insolvency (known as the Restructuring Directive). We anticipate that the Restructuring Regulation (ReO) will enter into force on 17 July 2021.

The core element of the Restructuring Directive (and of the implementing law) is the promotion of a new restructuring procedure, to avoid the need for formal insolvency proceedings.

The restructuring proceedings

On 13 January 2021, the English High Court sanctioned three interconditional Part 26A restructuring plans for the subsidiaries of DeepOcean Group Holding BV.

The plans for two of the companies were approved by the required 75% majority. While the third plan received 100% approval by secured creditors, only 64.6% of unsecured creditors voted in favour.

Consequently, at the sanction hearing the court was required to consider whether the cross-class cram down mechanism in the restructuring plan should be engaged for the first time in the UK.

Facts

Centenary Homes Limited (C) was a property development company which acquired two blocks of flats: one in Enfield and the other in Bloomsbury. The Bank of Scotland (BOS) extended secured finance to C for the development of the two properties.

C defaulted on its repayment obligations in 2012 and fixed charge receivers were appointed in March, when the balance outstanding was approximately £4.4 million.

The receivers were able to sell the Enfield flats in July 2012, for £3,250,000.