There has been an upturn in the frequency of trade finance workouts, restructurings and formal insolvencies. Drew Sainsbury looks at some key issues that banks face when trade finance lending passes to “bad bank”.
The bank’s decisions at every stage of a trade finance transaction are critical: at origination; when following a workout/restructuring; and once a formal insolvency process becomes a reality.
Origination
In Harms Offshore AHT ‘Taurus’ GmbH & Co KG v Bloom [2009] EWCA Civ 632, the English Court of Appeal had to decide whether it would grant an order to vacate an attachment on the property of a company in administration, even though the attachment was obtained by a creditor in a foreign court.
In Pick v Sumpter and another, the first defendant's trustee in bankruptcy applied for an order for possession of the defendants' matrimonial home. At the hearing in May 2006, the evidence showed that the sum outstanding as at November 2005 was £25,571 but did not take into account legal costs. That sum was an estimate and did not take into account statutory interest on the bankrupt's debts beyond the date of the hearing, solicitor's costs of the possession hearing or any increase or decrease in the trustee's remuneration.
The court will not review a bankruptcy order where there has been no material change and evidence subsequently adduced could have been available at the original hearing.
Re Johnson Machine and Tool Co 6
The company was the subject of a “pre-pack” administration, whereby it was placed into administration and its assets immediately transferred to a new company controlled by the directors and owners of the existing company.
Why has the Financial Support Direction (FSD) been issued?
We first reported on The Trustee in Bankruptcy of Louise St John Poulton v Ministry of Justice in the October 2009 banking update. In short, the Court Service had failed to give notice of a bankruptcy petition to the Chief Land Registrar. As a result, no pending action had been registered against the name of the debtor and no notice had been registered against the debtor's property.
There is something positively Dickensian when looking at the anti-deprivation rule (the "rule") and images come up of scribes working in dark and dismal rooms scratching their quills by dim candle light. Indeed, the rule dates back to the nineteenth century and many lawyers would be hard-pressed to explain it even if they are able to grasp the contradictions and fine distinctions thrown up by the old cases. In essence, the rule provides that a contractual provision is void if it provides for the transfer of an asset from the owner to a third party upon the insolvency of the owner.
Pre-packs continue to occupy centre stage, and administrators might be forgiven for feeling somewhat under the spotlight.
On 31 March 2010, the UK Insolvency Service released a new consultation paper entitled "improving the transparency of, and confidence in, pre-packaged sales in administrations.