October 30, 2012 - The UK Supreme Court has released a decision that significantly impacts cross-border insolvency proceedings: Rubin v. Eurofinance SA and New Cap Reinsurance Corporation v. A E Grant [2012] UKSC 46.
What role does business common sense play in the interpretation of commercial contracts? This issue was recently addressed by the Supreme Court of the United Kingdom in Rainy Sky S.A. v. Kookmin Bank. The answer: “where a term of a contract is open to more than one interpretation, it is generally appropriate to adopt the interpretation which is most consistent with business common sense”. Since there is currently some uncertainty in Canada on the point, Rainy Sky is an important case to consider.
Decision
INTRODUCTION
The use of trusts for asset protection purposes is well established and – in principle – not improper. However, recent history has seen increasing attempts by creditors to have transfers of assets unwound. A recent UK Supreme Court case saw the Court effectively achieve this by way of a resulting trust finding.1 This article considers the issue from a different angle: insolvency legislation.
Last month the Insolvency Working Group released its second and final report, dealing with voidable transactions and Ponzi schemes. The Group's first report was released in July 2016 and dealt with regulation of insolvency practitioners and voluntary liquidations. In the second report, the Working Group make a number of recommendations on the voidable transaction regime and regarding protection from Ponzi schemes. In relation to voidable transactions, the primary recommendations were repealing the "gave value" part of the defence available to creditors with a view to incre
If a transaction by a company amounts to an "unlawful distribution", and the company subsequently goes into liquidation, will an action for recovery of the benefits of that distribution, brought against the directors who authorised the transaction, be statute-barred if it is commenced by the liquidator of the company more than 6 years after the distribution was made?
In Prest v Petrodel Resources Limited (in Liquidation)(1) the Manx court recently confirmed that where security for costs orders is appropriate, the amount ordered will not always be restricted to a sum representing the extra costs incurred in enforcing an order in the jurisdiction in which the claimant is resident or in which assets are situated.
In Bailey v Angove's Pty Limited [2016] UKSC 47, the UK Supreme Court affirmed two principles of critical significance to insolvency practitioners. The first is that even if the parties should agree that an agent's authority is irrevocable, it will not be treated as such unless such non-revocation is intended to secure the financial interest of the agent. The second is that when money is paid to an agent for a consideration that the agent knows at the time of receipt must fail because of the agent's imminent insolvency, such receipt will not give rise to a rem
Legal opinions can be complex, and certain areas require the provision of reasoning to support the opining firm’s conclusion. Parties should discuss and agree the scope of legal opinions as early as possible within the life cycle of a deal. This article discusses some common areas for consideration.
WHAT IS A LEGAL OPINION AND WHY IS IT USED?
Legal opinions are formal letters typically provided to confirm a specified legal position in relation to a document or a suite of transaction documents.
For example, a firm practising English law may be asked to opine on whether:
Following the judgments in recent years on attribution to a company of its directors' knowledge in Bilta (UK) Ltd (In Liquidation) v Nazir [2015] UKSC 23 and UBS AG (London Branch) and another v Kommunale Wasserwerke Leipzig [2017] EWCA Civ 1567, the UK Supreme Court has once more returned to this issue in Singularis Holdings Ltd (in Official Liquidation) (a Company Incorporated in The Cayman Islands) v Daiwa Capital Markets Europe Ltd [2019] UKSC 50, in a case where a bank (Daiwa) was held liable for breaching its Quincecare duty of care to its customer,
RUBIN V EUROFINANCE SA
New Cap Re v Grant
[2012] UKSC 46