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    Managing risk under intellectual property licences
    2014-03-26

    A lot is written about structuring robust intellectual property licensing programs, whether from the perspective of licensors or licensees of intellectual property rights. This requires a careful consideration of legal, tax and regulatory issues that impact on the licensing arrangement.

    The legal risks can’t always be managed adequately through the careful negotiation and drafting of a licence agreement. Some of these risks need to be managed independently of the drafting of any agreements.

    Filed under:
    South Africa, USA, Insolvency & Restructuring, Intellectual Property, ENS, Bankruptcy, Consideration
    Authors:
    Chris Bull
    Location:
    South Africa, USA
    Firm:
    ENS
    New policy on the appointment of insolvency practitioners – could this be a turning point in the South African insolvency industry?
    2014-04-29

    The Minister of Justice and Constitutional Development (the Minister) has recently determined a policy on the appointment of insolvency practitioners, which was published in theGovernment Gazette No 37287 on 7 February 2014 (the policy). This policy, once it commences, will replace all the previous policies and guidelines that are currently being utilised by the Master's offices to appoint insolvency practitioners and its stated intention is to "form the basis of the transformation of the insolvency industry".

    Filed under:
    South Africa, Insolvency & Restructuring, Hogan Lovells, Liquidation
    Authors:
    Ashton Crommelin
    Location:
    South Africa
    Firm:
    Hogan Lovells
    Group companies and the avoiding of subpoenas in terms of sections 417 and 418 of Act 61 of 1973
    2014-04-30

    An interesting judgment was delivered by the Honourable J Majiki on 19 of November 2013 in the Eastern Cape High Court, Port Elizabeth. The first and second applicants under case 3521/2012 were ABSA Bank Limited and Maria Ramos respectively.

    Filed under:
    South Africa, Banking, Insolvency & Restructuring, Litigation, Hogan Lovells, Liquidation
    Authors:
    Keith Braatvedt
    Location:
    South Africa
    Firm:
    Hogan Lovells
    What is the meaning of "voting interests" in terms of section 153(1)(b)(II)?
    2014-04-30

    Section 153 (1)(b)(ii) of the Companies Act 71 of 2008 (the Act) is intended to afford a remedy to affected persons who support a business rescue plan that has been 

    The section can be broken down into five key elements:

    Filed under:
    South Africa, Company & Commercial, Insolvency & Restructuring, Hogan Lovells, Statutory interpretation, Liquidation
    Authors:
    Alex Eliott
    Location:
    South Africa
    Firm:
    Hogan Lovells
    The liability of shareholders for the tax debts of a company
    2014-05-23

    It has a long been a principle of company law that the debts of a company are not the debts of its shareholders.  It may be a surprise to some that this principle does not apply to certain tax debts thanks to section 181 of the Tax Administration Act No.28 of 2011 (“section 181”). This section allows shareholders to be held jointly or individually liable for the tax debts of their company. At first glance it seems unfair to punish those who do not manage the day-to-day running of a company.

    Filed under:
    South Africa, Company & Commercial, Insolvency & Restructuring, Tax, ENS, Shareholder, Dividends, Debt
    Authors:
    Dr Beric Croome , Warren Radloff
    Location:
    South Africa
    Firm:
    ENS
    Business rescue in the new Companies Act of 2008
    2013-09-17

    The New Companies Act No. 71 of 2008 replaced the old Companies in May 2011. Pursuant to the Amendment of the Old Companies Act, Chapter 6 of the new Companies Act introduces the Business Rescue Procedure (BRP). Business Rescue is a procedure that facilitates the rehabilitation and restructuring of a company that is undergoing financial difficulties. The business rescue procedure aims to maximise the possibility of the business to remain solvent.

    The definition of financial distress in the Act is as follows:

    Filed under:
    South Africa, Insolvency & Restructuring, Emery Mukendi Wafwana & Associates, Shareholder
    Authors:
    Linda Gieskes
    Location:
    South Africa
    Firm:
    Emery Mukendi Wafwana & Associates
    Le redressement d’entreprise de la Nouvelle Loi des Sociétés en tant qu’alternative à la gestion judiciaire
    2013-10-01

    La nouvelle loi des sociétés d’Afrique du Sud (The New Companies Act No. 71  of 2008) a remplacé l’ancienne loi des sociétés (The Old Companies Act) en mai 2011. Conformément à l'amendement de l’ancienne loi des sociétés, la nouvelle loi introduit le redressement d'entreprises. Le redressement d'entreprises est une procédure qui facilite la réhabilitation d'une entreprise en difficultés financières. La procédure de redressement d'entreprise vise à maximiser les possibilités de l'entreprise à demeurer solvable.

    Filed under:
    South Africa, Company & Commercial, Insolvency & Restructuring, Emery Mukendi Wafwana & Associates
    Authors:
    Linda Gieskes , Willy Bashiya Mbayi
    Location:
    South Africa
    Firm:
    Emery Mukendi Wafwana & Associates
    Recent developments in the de-registration and restoration of companies in liquidation
    2013-10-29

    In recent years, the Companies and Intellectual Properties Commission (“CIPC”) (and its predecessor, the Companies and Intellectual Property Registration Office (“CIPRO")) has been carrying out mass de-registrations of companies and close corporations for failure to file their annual returns. This phenomenon, and its severe negative effects on third party creditors, has been the focus of much legal scholarship. However, a short while ago it came to our attention that CIPC’s de-registration campaign also extends to companies that have been placed in liquidation.

    Filed under:
    South Africa, Company & Commercial, Insolvency & Restructuring, ENS, Liquidation
    Location:
    South Africa
    Firm:
    ENS
    Judgment highlights risk for creditors relying on suretyships in business rescue
    2014-02-05
    1. In our business rescue training workshops prior to the implementation of the Companies Act, No. 71 of 2008, clients were advised that where the debt of a debtor is compromised in terms of a business rescue plan, the debt of the surety and co-principal debtor may be extinguished because of the accessory nature of the suretyship debt to the principal debt.
    Filed under:
    South Africa, Insolvency & Restructuring, Litigation, ENS, Surety, Debtor, Debt
    Location:
    South Africa
    Firm:
    ENS
    Section 133 of the Companies Act 71 of 2008 and interruption of execution
    2014-03-01

    Consider the following commonly encountered scenario: A creditor had instituted litigation proceedings against Company X and obtained a default judgment against it. Pursuant to the judgment the creditor issued a writ of execution, but is now faced with the situation where an affected person has brought an application in terms of section 131(1) of the Companies Act 71 of 2008 (the Act) to place Company X under supervision and to commence business rescue proceedings. What is the effect on the creditor?

    Filed under:
    South Africa, Insolvency & Restructuring, Litigation, Hogan Lovells, Liquidation
    Authors:
    Ashton Crommelin
    Location:
    South Africa
    Firm:
    Hogan Lovells

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