EIGHTH CIRCUIT BANKRUPTCY MONITOR

Companies post-restructuring are not subject to the rules protecting creditors of insolvent companies in section 588FL of the Corporations Act 2001.

Dans une décision récente, la Cour d’appel de l’Ontario (la « Cour d’appel ») a infirmé une décision de première instance, laquelle avait été source de préoccupation pour les propriétaires commerciaux qui ont comme pratique courante d’utiliser des lettres de crédit pour garantir les obligations prévues à leurs baux commerciaux.

General rule under the laws of England & Wales

As a general rule, a cause of action (also known as a “bare right to litigate”) may not be assigned under English law. Such assignment is deemed to violate the rules regarding champerty and maintenance, the common law principles which prohibit third parties from intermeddling with the disputes of others – be it or not in return for a share of the proceeds. An assignment of a cause of action is therefore void.

In a not unexpected move with restrictions on the general public expected to remain well into the New Year the Government has extended the protections for commercial tenants and the restrictions on filing statutory demands and winding up petitions for COVID-19 related debts until the end of March 2021. The Government's announcement referred to these being the "final extensions".

With the possibility of a no-deal Brexit looming large, the implications for Irish insolvency practitioners is something we will all have to consider. The insolvency landscape will most likely look very different when we all return to the office after Christmas. This is a discussion on some of the possible implications for Irish and UK insolvency practitioners post-Brexit.

Current Regime

The UK Government has announced that the temporary prohibition on forfeiture will be extended when the current prohibition comes to an end at the end of the year. The restriction, that prevents commercial landlords from forfeiting a lease for non-payment, will now be in place until 31 March 2021.

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-1

The natural and most appropriate jurisdiction in which to wind up a company is its place of incorporation. The Hong Kong Companies Court, however, routinely deals with winding up petitions against companies which are incorporated outside Hong Kong, but listed on the Hong Kong Stock Exchange (“HKEx”). Given recent economic difficulties, the number of such petitions has been on the rise.

In another groundbreaking decision, the Hong Kong court in Re Ando Credit Ltd [2020] HKCFI 2775, has appointed provisional liquidators over a Hong Kong-incorporated investment manager for the express purpose of allowing the liquidators to seek recognition in the Mainland. The judgment is the latest in a series of judgments facilitating cross-border recognition and enforcement of assets and takes the degree of potential cooperation envisaged to a new level.

Application unopposed