Im (vorläufigen) Insolvenzverfahren ist es die Aufgabe des Insolvenzverwalters, für den Schutz personenbezogener Daten zu sorgen. Er übernimmt anstelle des ursprünglichen Geschäftsführers/Inhabers die Führung des Unternehmens und wird damit gemäß Art. 4 Nr. 7 Datenschutzgrundverordnung (DSGVO) datenschutzrechtlich verantwortlich. Das gilt nicht nur, wenn personenbezogene Daten für die Zwecke des Insolvenzverfahrens verarbeitet werden, sondern betrifft alle Verarbeitungsvorgänge im schuldnerischen Unternehmen. Ein „Insolvenzprivileg“ kennt das Datenschutzrecht dabei nicht.

A recent decision of the Judicial Committee of the Privy Council reaffirms its position that only in rare cases will it be appropriate to interfere with concurrent findings of fact of two lower tribunals.¹ The Privy Council found Byers and others v Chen Ningning to be one such case on the basis that an error in findings of fact as to the Respondent’s status as a director had been made by the first instance trial judge and upheld by the Court of Appeal.

Introduction

The recent Gategroup decision has put a focus on recognition of UK insolvency tools, as the industry grapples with uncertainties as to EU-wide treatment as an outsider. We consider whether it matters that there may not be any uniform recognition treatment for Restructuring Plans, and whether that offers parties opportunity as well as uncertainty.

1. Overview

Earlier, at the end of last year, on LinkedIn we posted the legal alert below regarding director’s liability in bankruptcy pursuant to section 2:138/248 of the Dutch Civil Code (‘DCC’). Due to the COVID-19 outbreak, legislation has been enacted that grants directors – under specific, COVID-related circumstances – temporary relief from the strict provisions of section 2:138/248 DCC.

This article provides for the insolvency law for the companies who are facing losses and are opting for deceleration of insolvency during the pandemic. Covid -19 pandemic has not only disturbed the financial conditions of an individual but has skeptically burdened the companies around the world.

A recent decision illustrates the court’s approach to providing non-party access to documents referred to at a public hearing, in the context of a proposed scheme of arrangement: Re Port Finance Investment Ltd [2021] EWHC 454 (Ch).

Bankruptcy in Mexico has two successive stages: reorganization and liquidation. When reorganization is not possible, bankruptcy is converted to the liquidation stage. The purpose of the reorganization stage is to maintain the enterprise and pay the allowed creditors through a reorganization plan. The purpose of the liquidation stage is to sell the enterprise – as a going concern or in segments – and pay the allowed creditors.

The Australian government has taken swift action to enact new legislation that significantly changes the insolvency laws relevant to all business as a result of the ongoing developments related to COVID-19. 

Overview

This bulletin is the first of a Fasken series about the recent decision of the Court of Appeal of Yukon in the ongoing receivership proceedings of Yukon Zinc Corporation (“Yukon Zinc”), indexed as 2021 YKCA 2. The decision addresses several important issues, including: (i) the scope of Section 14.06(7) of the Bankruptcy and Insolvency Act (“BIA”), which creates the Crown’s super priority charge for environmental remediation over the real property of a debtor; and (ii) Crown claims relating to unfurnished security or future costs.

Although debtors who file for Chapter 11 bankruptcy generally cannot pay prepetition debts until a plan which complies with the “absolute priority rule” is confirmed, there are a number of now well-established exceptions to this rule.