一、背景介绍

本案1中的被告、破产债务人美国航运公司（United States Lines Inc.，以下简称 USL）在世界各地长期经营庞大的海运业务。公司在美国特拉华州注册成立，后将业务拓展到英国，控股公司为在纽约注册的麦克莱恩工业公司（McLean Industries Inc.）。1986年，USL根据《美国破产法》第11章的规定，于11月24日提出破产申请。同日，美国纽约南区的地方破产法庭（以下简称美国破产法庭）的布施曼（Buschman）法官作出临时禁令并指定债务人托管人。USL的申请内容显示：公司资产共计12.5亿美元，总债务为12.72亿美元，负债金额超过资产的102%。而在英国，其欠下的总债务（已经清算的债务）达到243.4万英镑（包括拖欠原告的债务），资产约为72万英镑，债务超过资产的3倍，严重资不抵债。鉴于此，USL根据《美国破产法》第11章的规定进行重整，并计划完全关闭公司在英国和欧洲的运营。

When a company is in the so-called “twilight zone” approaching insolvency, it is well-established that the directors’ fiduciary duties require them to take into account interest of creditors (the so-called “creditor duty”).

Demonstrating what would most likely happen if a restructuring plan were not sanctioned is an essential element for the exercise of the court's discretion to cram down the votes of dissenting creditors

Restructuring plans under Part 26A of the Companies Act 2006 (CA 2006) may provide an alternative for companies in financial distress to formal insolvency (see our previous Insight).

If a company becomes insolvent, it is crucial that its directors comply with their legal duties. Failure to do so can result in personal liability for the company’s debts as well as legal action and disqualification from being a company director or being involved in a company in the future.

We look at exactly what a director’s duties on company insolvency are and some of the risks to be aware of in dealing with an insolvency.

What is insolvency?

When does the directors' duty arise to consider creditors' interests in the face of insolvency if a liability is disputed? Hayley Capani and Kate Garcia consider the case of Hunt v Singh and conclude we still don't have all the answers.

FSMA 2023 includes a court procedure for failing insurers to temporarily write-down liabilities, with implications for counterparties.

In Poland, pre-pack insolvency sales have been available since 1 January 2016. The legal framework regulating pre-pack insolvency sales was introduced into Polish insolvency law as part of a major reform of insolvency legislation that was aimed at preserving the value carried by the assets of insolvent entities and to ensure higher satisfaction for creditors.

In Hunt v Singh, the Court referred to the Supreme Court's landmark decision in BTI v Sequana (see our alert) in deciding when the directors' duty to creditors arose.

Background

Marylebone Warwick Balfour Management Limited (the Company), entered a tax avoidance scheme between 2002 and 2010 which the directors, on professional advice, believed to be valid.

The Court of Appeal has recently referred to established case law that the court will only interfere with the act of an officeholder “if he has done something so utterly unreasonable and absurd that no reasonable man would have done it”.

While the judge in the lower court had not made any error of law, on the facts there were identifiable flaws in the judge's reasoning that the trustees' decision not to join in the proceedings was perverse.

The judge had failed to recognise that:

Judgment creditors should be aware that the English Court of Appeal has given guidance on the proper construction of s423 Insolvency Act 1986 (transactions defrauding creditors)¹.