1. SOLVENCY II

1.1 Solvency II Directive review: Provisional political agreement reached on proposed Solvency II amending Directive

A common defense to a fraudulent transfer claim in bankruptcy concerning a securities transaction is the “safe harbor” defense under section 546(e) of the Bankruptcy Code. In a unique twist, a post-confirmation trust in Delaware recently argued that the safe harbor defense should not be available if the underlying transaction was illegal under the law where the debtor/transferor was incorporated.

A powerful tool afforded to a bankruptcy trustee or a chapter 11 debtor-in-possession ("DIP") is the power to recover pre-bankruptcy transfers that are avoidable under federal bankruptcy law (or sometimes state law) because they were either made with the intent to defraud creditors or are constructively fraudulent because the debtor-transferor received less than reasonably equivalent value in exchange and was insolvent at the time, or was rendered insolvent as a consequence of the transfer.

HFW DISPUTES DIGEST 2023

Welcome to the second annual Disputes Digest, in which we collate our 2023 global HFW LITIGATION and International Arbitration publications in one place.

This edition includes updates from across our Disputes arena, including England and Wales, BVI, AsiaPac, and the Middle East.

1. Department of Finance publishes its Feedback Statement on the National Discretions contained within MiCA

In the realm of corporate governance, addressing misconduct within a company becomes particularly critical when an insolvency practitioner is appointed. The Australian Securities and Investments Commission (ASIC) sheds light on the intricacies of this scenario, outlining key points for stakeholders to be aware of and steps to take.

This article will look at the recent decision of David Doyle J in In the Matter of HQP Corporation Limited (in Official Liquidation) (7 July 2023) and its effect on the ability of investors to recover damages from a company in which they have acquired shares as a result of a fraudulent misrepresentation.

Introduction

The case involved an application by liquidators for direction in relation to three issues in the winding up of the Company:

Key developments of interest over the last month include: IOSCO publishing its final Policy Recommendations for Crypto and Digital Asset (CDA) Markets; the UK government publishing a response to its previous consultation and call for evidence on proposals for the future financial services regulatory regime for digital assets as well as the FCA and Bank of England publishing proposals on the UK stablecoins regulatory regime; the European Parliament's ECON Committee publishing draft reports on the proposed PSD3 and Payment Services Regulation; and the UK government publishing a Future of Paym

As the ‘slow crush’ of persistently high interest rates bites, businesses of all kinds are struggling and many are reaching the point of failure, as indicated by each month’s number of creditors’ voluntary liquidations (CVLs) charting higher than the same period a year prior. The latest statistics from The Insolvency Service reveal that registered company insolvencies in October 2023 were 18% higher than in the same month in 2022.

De Hoge Raad heeft zich uitgelaten over de vraag in hoeverre er rekening moet worden gehouden met de draagkracht van een rechtspersoon bij het opleggen van een boete. De zaak waarin deze vraag speelde, gaat over een bedrijf dat is veroordeeld wegens het meermalen medeplegen van valsheid in geschrifte. In hoger beroep heeft het Openbaar Ministerie een boete gevorderd van 135.000 euro.