How the Belgian Cour de Cassation qualifies a director of a company as an “enterprise”
Since the entry into force of the new Belgian Code of Economic Law (‘BCEL’) it is possible for a company director, in its personal capacity, to be qualified as an “enterprise” and consequently to be declared bankrupt.
The definition of an enterprise is set out in Article I.1, 1° BCEL and relates to the following organisations:
a) any natural person who independently performs a professional activity;
Thorn (liquidator), in the matter of South Townsville Developments Pty Ltd (in liq) (Company) involved an ex parte application by a liquidator seeking approval under section 477(2B) of the Corporations Act 2001 (Cth) (Corporations Act) to enter into agreements to fund existing litigation and a request for the suppression and non-publication of certain details in those agreements.
Background
Letters of support take many forms and are issued for a variety of purposes and can generate a serious tension between the interests of various stakeholders — parents, subsidiaries, boards and auditors.
簡介
最近在關於申請罷免清盤人的Shearman & Sterling (a firm) and others v Asia-Pac Infrastructure Development Limited (in creditor’s voluntary liquidation) and others [2022] HKCFI 218一案中，法院在詳細考慮提出此項申請所需的資格後駁回申請，裁定申請人欠缺所需資格。
背景
第一被告人（「該公司」）是一間正在進行債權人自願清盤的公司。第二及第三被告人（分別為「鄧先生」及「侯女士」）是該公司的清盤人。該公司在高院民事訴訟2006年第806號（「高院訟案」）是原告人之一，而本案的原告人（「謝爾曼等人」）是高院訟案的被告人。
Chapter 15 of the U.S. Bankruptcy Code provides a streamlined process for recognition (a form of comity) of a foreign insolvency proceeding. However, courts are divided as to whether a foreign debtor must satisfy the general definition of “debtor” as that term is used in section 109(a) of the Bankruptcy Code, which requires a debtor seeking bankruptcy relief to reside or have a domicile, a place of business, or property in the United States.
The English High Court case Duneau v Klimt Invest SA & Ors [2022] EWHC 596 (Ch) is perhaps the first decision where a public listed company was wound up under section 122(1)(g) of the UK Insolvency Act 1986 on the just and equitable ground for loss of substratum. The case also considered whether a public listed company can be subject to equitable considerations and constraints such as those which apply in the context of quasi-partnership cases.
Despite a valuation fight, the Senior Lenders primed by Super Senior Debt in RP1 have had their debt written off in full in RP2 without even being given the opportunity to vote on the latter restructuring plan.
The case emphasizes that it is not enough for junior creditors to send letters to the court objecting to the RP and then expect the court to argue their case for them. In the words of Lord Justice Snowden, “they must stop shouting from the spectators’ seats and step up to the plate”.
The English High Court case Duneau v Klimt Invest SA & Ors [2022] EWHC 596 (Ch) is perhaps the first decision where a public listed company was wound up under section 122(1)(g) of the UK Insolvency Act 1986 on the just and equitable ground for loss of substratum. The case also considered whether a public listed company can be subject to equitable considerations and constraints such as those which apply in the context of quasi-partnership cases.
Backstop commitments have become commonplace in large corporate bankruptcy cases – they provide certainty to the debtor that it will have the funds needed to satisfy its obligations to creditors under its plan of reorganization and that it will have liquidity to operate post-bankruptcy as the reorganized entity. Backstop commitments are also a way for certain creditors to generate some additional return in the form of commitment fees and expense reimbursements in exchange for their agreement to backstop all or a material portion of a proposed rights offering or other financing arrangement.