前记

执行是实现生效裁判文书债权的“最后关键一环”，是维护当事人合法权益的“最后一公里”。囿于执行领域纷繁复杂的法律规定以及各地司法实践的尺度不一，执行往往成为争议解决的重点及难点。我们长期专注于执行领域，代理了大量金融资管公司、上市公司的公证债权文书、诉讼/仲裁的执行案件。为此，基于执行实务经验，我们着眼于当前执行领域的热点难点问题，推出执行干货系列专题文章，敬请关注。

专题二

目前，法院通过网络拍卖平台处置财产已成为处置执行财产的主要方式，相比传统拍卖模式而言网络拍卖的效率可能更高，也更有利于保护债权的实现以及债务人的合法权益。近年来，越来越多的破产财产也同样通过网络拍卖平台高效处置。实践中，竞买人经常因为种种原因事后意图“悔拍”并寻求救济。对此，破产网络拍卖相关纠纷究竟属于何种性质？竞买人应选择什么程序进行救济？拍卖公告是否一律不得修改？本文结合司法实践对前述疑问进行单刀直入地解析。

破产网络拍卖的性质

The court held in this case that a costs order in favour of the debtor, in respect of a discontinued bankruptcy petition for the same debt, due to the petitioner, could be set off against the sums due in respect of a second bankruptcy petition brought against the debtor by the same petitioner. The debtor had argued that the petition should be stayed until the previous costs order had been paid.

Introduction

With grimly apposite timing, in June, the Supreme Court gave its decision in Bresco Electrical Services Ltd (in Liquidation) v Michael J Lonsdale (Electrical) Ltd and turned on its head the construction industry’s understanding of an insolvent company’s right to pursue an adjudication. It will fundamentally affect construction insolvencies.

On 21 July 2020, the Irish High Court approved a scheme of arrangement for the world’s largest regional aircraft lessor Nordic Aviation Capital DAC (NAC).

The scheme, which included a 12-month standstill and deferral of c. US$5bn of secured and unsecured debt, is a market-first for the aircraft leasing industry in Ireland whose customer base has been seriously impacted by COVID-19. We look at the NAC scheme of arrangement and consider whether it is a viable restructuring option for the aviation sector more generally.

The case concerned an insolvency practice which had been placed into compulsory liquidation. The Applicants had been appointed liquidators. However, between the presentation of the petition and the winding up order, the assets of the insolvency practice were transferred to another practice, resulting in a claim under section 127 IA86 to declare the transfer void. In addition, the liquidators sought to have transferred to themselves the insolvency cases of the two practitioners of the former practice. The application was by way of the block transfer procedure.

In this case the court considered a debtor’s application to set aside a bankruptcy order made in her absence (due to self-isolation in accordance with Covid-19 guidelines). It was held that the fact that the debtor was bankrupt meant she had no standing to apply to set the order aside. The court accepted that the debtor had a good reason not to attend court, and had acted promptly to set the order aside, however legal precedent going back to the 1990’s meant that only a trustee in bankruptcy could challenge the liability orders. 

This case was heard before CIGA came into force but the provisions of the CIG Bill were known. Statutory demands were served on 27 March 2020 on the company in respect of debts due under loan agreements and a winding up petition had been presented. The company applied for an injunction to restrain the advertisement of the petition, claiming that although it was insolvent it had been prevented from obtaining funding, to enable it to propose a scheme of arrangement to its unsecured creditors, as a result of the pandemic.

On July 20, 2020, the Quebec Court of Appeal (Court of Appeal) released its decision in Séquestre de Media5 Corporation, overturning the lower court’s decision and authorizing the appointment of a receiver pursuant to section 243(1) of the Bankruptcy and Insolvency Act (BIA).

Simon Newman of 1 Chancery Lane recently acted for a petitioner and obtained one of the first Winding Up Orders under the Corporate Insolvency and Governance Act 2020 (the 2020 Act). The unusual retrospective applicability of the 2020 Act meant that the Petitioner had to satisfy requirements which were not in force at the time the Petition was issued; requirements which creditors had feared brought to an end (at least temporarily) the ability to threaten a company with insolvency if it is unable to pay a debt that is due.

Legislative Context

The joint liquidators of a company, which had been compulsorily wound up in England and Wales, sought orders under section 236 of the Insolvency Act 1986 (“IA86”) for production of documents and an account of dealings with the company, in respect of companies in Italy. The question for the Court was whether s236 IA86 had extraterritorial effect. The problem for the court was that there was competing first instance decisions both for and against.