Latest updates

Knowledge of counterparty's insolvency in claw-back case
  • Sweden
  • December 15 2017

A bankruptcy estate may take action for the claw back of transactions that have been carried out in relation to a certain creditor before the initiation of bankruptcy proceedings, if such transactions have been adverse to the interests of other creditors. Certain transactions can be reversed during a five-year hardening period if the relevant creditor knew, or should have known, that the debtor was insolvent when the transactions were undertaken.

Restructuring Order applies only where binding ruling exists
Clifford Chance Deutschland LLP
  • Germany
  • December 15 2017

On February 9 2017 the Great Senate of the Federal Fiscal Court published a decision stating that the Restructuring Order was illegal. On June 27 2017 the legislature introduced new legislation which provides that the tax authorities may waive taxes or assess taxes at a lower level. However, the new legislation can be applied only where creditors have waived their claims after February 8 2017.

New group insolvency law
Graf & Pitkowitz Rechtsanwälte GmbH
  • Austria
  • December 08 2017

The Insolvency Code was recently amended in response to the introduction of the EU Insolvency Regulation, creating – for the first time – specific rules for the insolvency of corporate groups in Austria. From a practical standpoint, this approach is welcome, as it may lead to faster and more efficient insolvency proceedings. It remains to be seen how the new rules will affect insolvency practice and whether coordination proceedings according to the EU regulation will be applied in practice.

Can the terms of a settlement agreement be challenged under Section 127 of the Insolvency Act 1986?
Taylor Wessing
  • United Kingdom
  • November 24 2017

In between the presentation of a winding-up petition and the making of a winding-up order, a company entered into a settlement agreement with its founder. The judge concluded that the intended claims by the company's liquidators were not barred by the agreement. The judge also held that the release of contractual rights constituted a disposition, as did a promise not to sue. The provisions of the settlement agreement were therefore void.

Application by Lehman's administrators on distribution to shareholders
Taylor Wessing
  • United Kingdom
  • November 17 2017

The administrators of Lehman Brothers Europe Ltd recently brought an application for directions on whether to make a substantial distribution of surplus to the company's sole shareholder while the company was in administration and the administrators' role in that distribution. To navigate around the Insolvency Act, the administrators devised a nifty strategy whereby the distribution would be made using the residual powers still vested in the directors and shareholders of the company pursuant to the Companies Act.

Administrator liability in bankruptcy framework
ALTIUS
  • Belgium
  • November 03 2017

Parliament recently voted into law the federal government's proposal to introduce a new chapter on insolvency into the Code of Economic Law. Among other things, the new chapter concerns the potential liability of former directors of a bankrupt company. Some of the new principles already partially existed in Belgian law, but have been amended by the new chapter, which also broadens certain concepts which will thus apply to a wider range of entities.

Legal professional privilege and bankruptcy
Taylor Wessing
  • United Kingdom
  • November 03 2017

A court recently confirmed that legal professional privilege does not automatically vest in the trustee in bankruptcy. Legal professional privilege is a fundamental human right such that express statutory powers would be necessary to deprive the bankrupt of that right. Therefore, the bankrupt would need to waive privilege or consent to the use of privileged documents.

Reinstatement of a company
  • Jersey
  • November 03 2017

The procedure governing the reinstatement of a dissolved Jersey limited company is contained in the Companies (Jersey) Law 1991. Where a company has been dissolved or, most commonly, struck off the register by the registrar of companies after failing to file an annual return, the Royal Court has the power to declare the dissolution void and order the reinstatement of the company.

Liability claims against managing directors
Clifford Chance Deutschland LLP
  • Germany
  • October 06 2017

In order to maintain an insolvency estate and achieve the utmost satisfaction of all creditors, German legislation has ratified various liability claims against managing directors for payments made after their company has become illiquid or been deemed to be overindebted. However, according to recent case law, one thing that all of these claims have in common is that managing directors cannot be held liable for payments made that result in an equivalent compensation for the company.

Supreme Court to consider statutory safe harbour for debtors' pre-petition securities transactions
Caplin & Drysdale, Chartered
  • USA
  • September 29 2017

In an upcoming case, the Supreme Court will address the question of whether the Bankruptcy Code bars a bankruptcy trustee from avoiding a debtor's constructively fraudulent pre-petition securities transactions merely because the deal was executed through a financial intermediary with no stake of its own in the transaction. The issue turns on the meaning of Section 546(e) of the Bankruptcy Code.

Compulsory liquidation of banks using ordinary insolvency proceedings
Lombardi Segni e Associati
  • Italy
  • September 15 2017

In the recent rescue of two major national banks, the Ministry of Economy and Finance considered the banking sector's traditional measures for an administrative compulsory liquidation to be inadequate and insufficient. As a result, it issued Decree-Law 99, which placed the banks into administrative compulsory liquidation and introduced instruments to manage their financial crisis.

Amsterdam Court of Appeals denies recognition of Yukos bankruptcy based on public order exemption
  • Netherlands
  • September 15 2017

The Amsterdam Court of Appeals recently ruled that the 2006 Russian liquidation order regarding OAO Yukos Oil Company is contrary to Dutch public order and therefore null and void. The court's reasoning was largely based on a 2014 European Court of Human Rights judgment following a complaint lodged against Russia by the former Yukos shareholders with regard to Yukos's liquidation.

Status of 'other' creditors under Insolvency and Bankruptcy Code 2016
  • India
  • September 08 2017

The Reserve Bank of India recently directed several banks to start insolvency resolution proceedings against a list of identified companies, including Jaypee Infratech Limited, a leading real estate development company. The case has highlighted the need for the Insolvency and Bankruptcy Code 2016 to recognise a wider class of creditors that can initiate an insolvency proceeding and participate meaningfully in such process. It has also emphasised the important role that financial creditors play.

Protective measures in insolvency proceedings
Graf & Pitkowitz Rechtsanwälte GmbH
  • Austria
  • September 08 2017

In some cases of insolvency, it may be necessary to take special measures which affect the debtor or third parties in order to prevent the insolvent assets from diminishing. These cases are governed by Section 78 of the Insolvency Code, which offers the possibility of ordering individual protective measures with regard to the debtor and third parties. In particular, recent case law has extended the scope of application of these protective measures.

Pacific Andes saga: forum shopping, Chapter 11 and just and equitable winding up
  • British Virgin Islands
  • September 01 2017

'Forum shopping' is the practice of choosing the most favourable jurisdiction in which to bring a claim. In principle, there is nothing wrong in seeking to have a case heard in the forum which is most favourable to the client. However, it can lead to some fierce jurisdictional battles, particularly in insolvency, where the choice between debtor and creditor-friendly procedures can be stark. The Commercial Court has been wrestling with this situation over the past 10 months.

Supreme Court examines Rule 56 of Companies (Winding-up) Rules
George Z Georgiou & Associates LLC
  • Cyprus
  • July 28 2017

The Supreme Court recently examined the correct application of Rule 56 of the Companies (Winding-up) Rules, which regulates the procedure to be followed by the chair at a creditors' meeting in the case of an objection by a creditor regarding whether a proof of debt by another creditor must be accepted in order to determine the creditor's voting rights.

Reorganisation plan: position of secured creditors
ALTIUS
  • Belgium
  • July 21 2017

The Business Continuity Act aims to enable debtors in difficulty to continue their activities by restructuring their debts. One of the proceedings that the act introduced is the reorganisation of debt pursuant to a restructuring plan. The restructuring plan may consist of several measures, including the waiver of certain debts. However, none of these measures (with the exception of a temporary stay on the enforcement of claims) may be imposed on secured creditors, unless they expressly agree to it.

First appointment of provisional liquidator in Royal Court
  • Guernsey
  • July 07 2017

A recent Royal Court judgment is important as it appears to be the first time that a provisional liquidator has been appointed by the court over a solvent Guernsey company. This case adds helpful guidance to the Guernsey insolvency regime as it demonstrates that the Royal Court adopts a pragmatic and flexible approach when exercising its discretion, particularly where the parties face unusual circumstances.

Recent measures to facilitate restructuring and prevent insolvency
NautaDutilh
  • Luxembourg
  • June 23 2017

Luxembourg recently adopted a number of legislative reforms aimed at modernising the rules applicable to commercial companies, including a number of reforms which could affect their restructuring and insolvency. Although the main purpose of these changes is to modernise the rules applicable to commercial companies and the relevant publication formalities, they may also prove useful in the framework of corporate restructuring and the prevention of insolvency.

Competitive sales in concordato preventivo proceedings
Lombardi Segni e Associati
  • Italy
  • June 16 2017

Decree-Law 83, which reformed Italian bankruptcy law, entered into force in August 2015. One of the drivers of the reform was a desire to discourage pre-packaged restructuring deals originating from the debtor and to implement the efficiencies of concordato preventivo (ie, composition with creditors) proceedings, opening them up to the market and generating new opportunities for both investors and distressed companies.

Current search

Refine search

Type

Work area

Jurisdiction

Firm