A recent decision of the Ontario Court of Appeal invalidated an arbitration and forum selection clause in a commercial agreement in favour of having a dispute between the debtor and its former customer adjudicated within a receivership proceeding.

In the receivership proceedings of Distinct Infrastructure Group Inc.

Introduction

It is common for construction project owners to finance projects through multiple mortgages, especially in times of rising construction costs. However, when an insolvency situation arises, holdback priority claims from contractors and subcontractors are particularly complex when there are multiple building mortgages involved. The Ontario Superior Court (Commercial List) provided new clarity in this regard in its April 29, 2022 decision in BCIMC Construction Fund Corp. et al.

In In re Rehabilitation of Scottish Re (U.S.), Inc., C.A. No. 2019-0175-JTL (Del. Ch. Apr.18, 2022), the Delaware Court of Chancery ruled, as a matter of first impression, that in a delinquency proceeding for an insurance company under Delaware law, there is no per se requirement that a rehabilitation plan meet a “liquidation standard” to obtain court approval. Under the “liquidation standard,” a rehabilitation plan must provide claimants at least “liquidation value,” or the value they would have received in a liquidation proceeding.

In Kellow, Re Advanced Building & Construction Ltd (In Liq) v Advanced Building & Construction Ltd (In Liq) (No 2) (Kellow) the Court considered whether an insolvency proceeding commenced in New Zealand should be recognised as a “foreign main proceeding” pursuant to the United Nations’ Commission on International Trade Law’s Model Law on International Trade Law (Model Law).

BVI | CAYMAN ISLANDS | GUERNSEY | HONG KONG | JERSEY | LONDON mourant.com 2021934/84097043/1 GUIDE Insolvency procedures for Guernsey companies Last reviewed: August 2022 Contents Introduction 2 Modern corporate insolvency proceedings 2 Administration 2 Liquidation 3 Voluntary liquidation 3 Compulsory liquidation 3 Scheme of arrangement 4 Statutory process 4 Three-stage mechanism 4 Approval and challenges 4 Receivership 5 The traditional procedures 5 Désastre 5 Saisie 6 Out-of-court restructurings and consensual workouts 6 Legislative changes 6 Conclusion 7 Contacts 7 BVI | CAYMAN ISLANDS |

Contents

Rising distress? 2022 in statistics31 December 2022

Court exercises discretion to grant examination orders The Court of Appeal affirmed the High Court’s exercise of its discretion to grant orders that a company director be examined in Court notwithstanding that director was involved (as defendant in one instance and as the director of a defendant company in the other) in separate legal proceedings that have been commenced by the liquidator.

The recent Grand Court decision of Ltd. (Unreported, 19 June 2024, Kawaley J) has reiterated and further clarified the principles to be applied to the remuneration of court-appointed receivers. Given the limited Cayman case law on the topic, the decision provides useful guidance and certainty to Receivers, and to those advising them.

What is a court-appointed 'Receiver', and what is 'remuneration'?