Over the last few years, the courts have shown themselves to be increasingly unwilling to interfere in the level of liquidated damages set in building contracts. The courts have taken this position predominantly because the agreed level of liquidated damages forms part of the commercial bargain reached between the parties at the outset of the contract. However, employers should still carefully calculate the level of liquidated damages inserted into the contract for the following reasons:
In these parlous economic times, more businesses are facing increased financial pressure, resulting in periods of stressful trading. In such cases, consideration needs to be given to the development of a sound strategy that allows the company to successfully continue to trade and pay its creditors.
The purpose of this article is to address some of the “tools” available to assist directors in the restructuring of a company.
On 26 July, the Pensions Regulator (TPR) published a statment on financial support directions (FSDs) and insolvency, with the aim of helping 'the pensions and insolvency industries understand TPR's approach in relation to financial suppirt directions in insolvency situations.'
The issues concerning validity of appointment, which arose following the decision in Minmar Limited v Khalastchi have been considered in a number of recent cases, most recently BXL Services Limited [2012] EWHC 1877 (Ch).
In this August edition of the Pensions E-Bulletin, we look at the Pensions Regulator’s statement on its approach to financial support directions (FSDs) in insolvency situations, the shortened guidance on incentive exercises issued by Pensions Regulator following the publication of the industry code of good practice as well as noting the updated guidance on multi-employer scheme departures and the consultation by the Takeover Panel on proposals relating to pension scheme trustees.
FSDs and insolvency – the Regulator’s statement
The Pensions Regulator (the "Regulator") has published a statement to help banking, insolvency and restructuring professionals understand its approach to its Financial Support Direction ("FSD") powers in insolvency situations.
Facts
In 2006, a subsidiary of a Brazilian company issued US$100 million in principal amount of notes, guaranteed by its parent and constituted by a trust deed.
BBA has published a briefing paper setting out its position on the Commission’s proposal for a bank recovery and resolution directive. It suggests that certain powers, such as appointing a Special Manager or requiring a plan for debt restructuring, are more akin to resolution tools and should not be used until the firm has reached its point of non-viability. This also applies to the bail-in tool, which cannot be used as the first or default option.
The Bankruptcy Fees etc (Scotland) Regulations 2012 recently implemented some significant changes to the Accountant in Bankruptcy (AiB)’s fees structure. Key changes include:
- The 1992 ISDA Master Agreement: Court of Appeal provides clarity on payment obligations owed to insolvent counterparties
Lomas v JFB Firth Rixson Inc [2012] EWCA Civ 419