The history of bankruptcy in these United States teaches this:
- bankruptcy laws can provide an efficient and effective solution for a great variety of financial problems.
But bankruptcy laws, in these United States, face significant problems, and their effectiveness is being diminished.
First Problem
Bankruptcy has a fundamental problem: nobody likes it.
Everyone recognizes that bankruptcy laws are a necessity in our market economy. And bankruptcy laws are even founded upon a provision of the U.S. Constitution:
There are many reasons to mandate mediation in certain circumstances.
- One is to improve the quality of justice.
- Another is to manage an expanding docket and burgeoning caseload.
- A third is to create a mediation culture where none currently exists.
There are two ways to mandate mediation:
2024: main new legislation needing to be considered by companies in Spain 2024 Viewpoint Spain 2 2024: main new legislation needing to be considered by companies in Spain December 2023 Professionals in the various practice areas at Garrigues take a look, from all angles of business law, at the main new legislation that companies will face in the coming year. 2024 promises to be an intense year in terms of statutory and case law.
The Chief Justice of the Commonwealth of The Bahamas, Sir Ian Winder has issued Cross-Border Insolvency Practice Direction No. 14 of 2023 for Court-to-Court Communications and Cooperation in cross-border insolvency and restructuring cases after consultation with the Justices of the Supreme Court, Commercial Division.
The practice direction addresses the use and adoption of published JIN guidelines in cases pending before the Supreme Court of the Commonwealth of The Bahamas. The practice direction took effect on 19 December 2023.
Recently, two significant distressed companies with thousands of commercial leases, Rite Aid and WeWork, each filed chapter 11 bankruptcy cases, seeking in part to rationalize their geographic footprints through the rejection of a substantial portion of their lease portfolios.
A Case Analysis of Official Trustee in Bankruptcy v Kent (No 2) [2023] FCA 1396
In Official Trustee in Bankruptcy v Kent [2023] FCA 1211 (“Principal Case“), the Court found that a bankrupt’s right to claim compensation through the Australian Financial Complaints Authority (“AFCA”) is personal to the bankrupt and that right cannot be assigned to the Trustee.
The Federal Court decision of Copeland in his capacity as liquidator of Skyworkers Pty limited (in Liquidation) (Skyworkers) v Murace [2023] FCA 14 stresses the importance of liquidators adequately particularising claims in a Statement of Claim (SOC). In particular, the liquidator in this case was unable to identify the specific dates that the debts were incurred and how these debts arose.
摘 要
从法律性质上看，管理人在破产程序中可行使的撤销权分为两类，其一是根据企业破产法第31条规定，对于欺诈行为的撤销；其二是根据企业破产法第32条规定，对于在破产程序开始前六个月内个别清偿行为的撤销。出于平衡全体债权人与个别债权人之间的利益冲突，第32条以但书形式规定了“个别清偿使债务人财产受益的除外”之个别清偿撤销例外，以避免个别清偿撤销权的滥用。但管理人与债权人常常产生冲突，管理人往往通过撤销权诉讼在依法履行勤勉义务的同时谋求可分配财产的最大化，债权人则常以个别清偿撤销例外作为抗辩理由以避免交易回转。由于我国现行法律是通过“列举+兜底”的模式对个别清偿撤销例外进行规定，因此对于个别清偿撤销例外的边界并不清晰，需要通过梳理部分司法裁判观点，为厘清个别清偿撤销例外的边界提供一些思考。
关键词：
企业破产法 撤销权 管理人 破产程序
民法典 个别清偿
This article was first published in December 2023 by Law360.
English schemes of arrangement have long been used to restructure the debts of both English and foreign companies. This has made the UK a center of cross-border restructurings.
The scheme's more powerful cousin, the restructuring plan, with its ability to cram down entire classes of dissenting creditors, has bolstered the UK's position in the global restructuring market.
Every now and then, a bankruptcy ruling elicits an “Oh, no!” response from just about everyone.
And then, subsequent case law starts rejecting and/or chipping-away at that “On, no!” ruling.
We have such an “Oh, no!” situation going on right now on a Subchapter V debt-limit issue.
New Rejecting/Chipping-Away Opinion