It is usually held that Bermuda insolvency law follows English insolvency law, so far as possible, applying the same principles that would have applied immediately before the introduction of the English Insolvency Act in 1986. That is a fair summary, but it does not tell the whole story.
John Wasty, John Riihiluoma, Lalita Vaswani and Sam Riihiluoma, Appleby
This is an extract from the 2020 edition of the Americas Restructuring Review, published by Global Restructuring Review. The whole publication is available here.
In summary
On 10 November 2014, the Privy Council handed down its decision in Singularis Holdings Limited v PricewaterhouseCoopers1, together with its decision in a related case, PricewaterhouseCoopers v Saad Investments Company Limited2, both on appeal from the Court of Appeal in Bermuda. The decision provides guidance on the application of the principle of modified universalism.
Key Points
- The principle of modified universalism (being the principle underlying the common law power to assist foreign insolvency proceedings) continues to exist
- There is a common law power to order production of information to assist foreign insolvency proceedings
- Common law assistance does not enable office holders to do something they would not be able to do under the insolvency laws by which they are appointed
The Facts
The Bermuda Commercial Court has provided guidance as to the considerations it will take into account when deciding the identity of the JPLs, further to our article on the Up Energy Group Ltd (the Company) restructuring and the circumstances in which Joint Provisional Liquidators (JPLs) will be appointed to monitor the proposed restructuring of a Be
Section 97 of Bermuda’s Companies Act 1981 imposes a statutory duty on every director to: (a) act honestly and in good faith with a view to the best interests of the company; and (b) exercise the care, diligence, and skill that a reasonably prudent person would exercise in comparable circumstances. The test is therefore an objective one using the reasonably prudent person as a comparator (see Focus Insurance Co Ltd v Hardy [1992] Bda LR 25 which appears to suggest that an element of subjectivity may also be considered in Bermuda.
The liquidators of two Cayman Island companies obtained orders under s 195(3) of the Bermudan Companies Act 1981 for PwC, as the companies' auditor, to provide information and documents to the liquidators. PwC decided to appeal but, in the meantime, did US$250,000 of preparatory work necessary to enable compliance, if required, with the orders.
As a result of the appeal, both orders were set aside. In PricewaterhouseCoopers v SAAD Investments Co Ltd & Anor (Bermuda) PwC applied to recover from the liquidators the costs of preparing to comply with the orders.
The Constitutional Court of FBiH has found that the current order of settlement of workers' claims in bankruptcy proceedings is unconstitutional.
With Judgment U-27/15, the Court declared articles 33 and 40 of the Law on Bankruptcy Proceedings (FBiH Official Gazette, nos. 29/03, 32/04 and 42/06) unconstitutional, which considerably affected the order of settlement of creditors in bankruptcy proceedings.
The High Court considers questions relating to the location of three companies' COMIs and an alleged "improper motive" regarding the appointment of administrators
The new legislation on liquidation proceedings in Republika Srpska (Zakon o likvidacionom postupku “Official Gazette of Republika Srpska”, no. 82/19) (“New LPA“) comes into force on 12 October 2019. It introduces new, simplified, form of voluntary liquidation of companies and other business entities, and detailed rules on liquidation of assets and claims settlement in ordinary liquidation proceedings.
Simplified liquidation proceedings