Insolvency & Restructuring updates
Austria
Restructuring plans and their impact on non-participating creditors
- Austria
- 05 April 2019
Under the Insolvency Act, once a restructuring plan has been confirmed, the debtor is discharged from its debt and is subsequently prevented from paying its creditors their deficiency or repaying other granted benefits. Consequently, any claims that were not registered during the insolvency proceedings – even if they should have been – fall under this restriction and cannot be repaid. That said, exceptions to the rule exist.
Bahamas
Privy Council determines extraterritorial reach of clawback claims in insolvency proceedings
Lennox Paton- Bahamas
- 23 August 2019
The Privy Council has determined that, notwithstanding the absence of express statutory provisions permitting service out of the jurisdiction of fraudulent preference claims, such claims are to have extraterritorial effect. This decision clarifies the law as it relates to the extraterritorial effect of fraudulent preference claims; however, it also creates difficulties for subscribers to mutual funds that may be held liable for investments made on behalf of third-party beneficiaries that are the ultimate recipients of payments.
Belgium
Government measures to assist companies during COVID-19 pandemic – interview
- Belgium
- 12 June 2020
Due to the lockdown measures and other restrictions imposed by the government to fight the COVID-19 pandemic, many companies are dealing with revenue losses while having the same level of (fixed) costs. In this video, Bart Heynickx, counsel at ALTIUS, discusses various insolvency issues that are arising in Belgium as a result of COVID-19.
Is my business automatically protected against creditors during COVID-19 crisis?
- Belgium
- 08 May 2020
Due to the lockdown measures and other restrictions imposed by the government to fight the COVID-19 pandemic, many companies are dealing with revenue losses while having the same level of (fixed) costs. Royal Decree No 15, which recently entered into force, implements new temporary measures to protect businesses that had not ceased payment before or on 18 March 2020 but found themselves in difficulty afterwards due to the COVID-19 crisis. These measures will last until 17 May 2020, unless extended.
Limits to privileged claims
- Belgium
- 28 February 2020
A Supreme Court judgment has clarified that new financing during reorganisation proceedings in principle results in new claims, leading to a privileged status of such claims in the framework of any subsequent liquidation. Further, it confirms that the courts require financing to be actual and new (ie, mere refinancing is insufficient).
Clawback: chasing assets
- Belgium
- 13 December 2019
The legal form of the actio pauliana offers options for creditors which are confronted with debtors that are disposing of important assets or organising their insolvency. This article reflects on some of the options offered under Belgian law by the actio pauliana, commonly referred to in English as the 'clawback' rules.
Effect of EU preventive restructuring directive on Belgian insolvency framework
- Belgium
- 18 October 2019
A number of legislative changes to Book XX of the Code of Economic Law may be required following the adoption of EU Directive 2019/1023/EU on preventive restructuring frameworks. This article focuses on the directive's potential effect on Book XX with regard to debtors in possession, the duration of moratoria, the suspension of enforcement during moratoria, the suspension and termination of ongoing contracts, the cramdown of creditors and the acceptance of reorganisation plans.
British Virgin Islands
This is not a wind up: BVI court approves restructuring provisional liquidation
- British Virgin Islands
- 15 March 2019
In a major development in BVI insolvency law and practice, the Commercial Court recently held that provisional liquidation is available to facilitate a restructuring. The objective of a restructuring provisional liquidation is to provide a better outcome for creditors than would be likely on a winding up. The Commercial Court's decision will certainly influence the current debate in the British Virgin Islands regarding insolvency legislation reforms.
Cayman Islands
Snapshot: compulsory liquidation
Ogier- Cayman Islands
- 08 January 2021
A Cayman Islands company may be wound up either voluntarily according to its articles of association or compulsorily by the Grand Court. This article provides an overview of the compulsory process in the Cayman Islands.
Snapshot: determining whether a petition debt is disputed on substantial grounds
Ogier- Cayman Islands
- 20 November 2020
It is trite law that where a petition debt is disputed in good faith and on substantial grounds, the Grant Court's ordinary practice is to dismiss or strike out the winding-up petition. However, this principle is more easily applied in theory than in practice, resulting in a remarkable amount of case law. That body of case law has been swelled in 2020 by a number of Grand Court decisions which provide further guidance as to whether a petition debt is to be considered genuinely disputed on substantial grounds.
Guide to restructuring and corporate recovery
Ogier- Cayman Islands
- 30 October 2020
This article answers FAQs on restructuring and corporate recovery options available in the Cayman Islands, with respect to domestic procedures, cross-border procedures, creditors, avoidance transactions, contributions to liquidation estates and officer liability.
Snapshot: bringing claims against Cayman entities subject to insolvency processes
Ogier- Cayman Islands
- 23 October 2020
To ensure the orderly and collective resolution of a company's affairs, the Companies Law imposes a moratorium on commencing or proceeding with any suit, action or other proceedings against the company once liquidators are appointed by the court (including on a provisional basis). Once these officeholders are appointed, proceedings can be commenced or proceeded with against the company in question only with the leave of the Grand Court, subject to such terms as the court may impose.
Restructuring – current state of play
Ogier- Cayman Islands
- 04 September 2020
At the recent Chambers Economic Forum, the Cayman government announced its intention to bring in a much-anticipated new regime governing corporate restructuring by the end of 2020. Until then, with the COVID-19 pandemic pushing many groups into the zone of insolvency, a number of considerations remain relevant to structures involving a Cayman entity.
