BVI based creditor – Mighty River International Limited – challenged the validity of a “holding” deed of company arrangement (or a ‘holding DOCA’) approved by creditors of Australian miner Mesa Minerals Limited (Company). Continue Reading
Singapore has set its sights on becoming an “International Center for Debt Restructuring”, approaching the status of London and New York.
Key to achieving that goal, in 2017 Singapore enacted the Companies (Amendment) Act 2017 which effected major legislative changes to restructuring provisions of the Singapore Companies Act (Cap 50) 2006 (referred to hereafter as the “Companies Act”). That legislation has been followed by further reforms with the passage of the Insolvency, Restructuring and Dissolution Act 2018 (which passed parliament on 1 October 2018). Continue Reading
The new Australian Financial Complaints Authority (AFCA) launches on November 1, 2018. Financial firms, including superannuation funds, will be required by law to join AFCA. AFCA has increased powers and a broader reach than its predecessor bodies. Continue Reading
The role of an IP has always been challenging – taking control of a company in crisis, making swift decisions based on limited information and balancing the competing interests of stakeholders; all of this requires sound judgment, often under extreme pressure. It is no surprise that, when things go wrong (or perhaps more accurately when parties feel they have lost out), the IP can become the focus of blame, and their insurance policy an attractive target for ‘last resort’ litigation.
The traditional situation in which an IP finds themself the target of litigation is one where lenders have enforced personal guarantees against the company’s directors or shareholders. Faced with the prospect of paying out under the guarantee, the director or shareholder responds with a cross claim against the IP1, usually along the lines that the IP breached his/her duties by failing to realize the best price when selling key assets. In other words, a claim that the IP ‘undersold’ those assets2.
However, in the past few years, there has been a noticeable change in the type of claims brought against IPs and their firms, as well as a large uptick in their frequency. Two main themes have emerged.
The first is that claims for ‘underselling’ are increasingly being brought as standalone actions, rather than as a defensive tactic to demands under a guarantee. See, for example, AM Holdings v. Batten & LePage  EWHC 934 and Davey v. Money & Another  EWHC 766 (Ch). Both of these claims were brought by the company or its shareholders as standalone claims that (inter alia) the IPs had undersold the company’s assets. It is notable that both claims were brought after what would ordinarily be perceived as successful administrations – in AM Holdings the company returned to solvency, and in Davey unsecured creditors had received a significant dividend.
The second theme is the rise in claims based on economic torts – most notably claims for unlawful means conspiracy. The most high profile of these claims has arguably been Premier Motor Auctions v. Lloyds Bank and PwC, which was dismissed earlier this year, but there have been (and still are) many similar claims at various stages of proceedings. The typical allegation in such claims is that the IP or their firm unlawfully conspired with a secured creditor (usually a bank) to place the company into an insolvency process with a view to extracting the associated fees and (in the case of the bank) a discounted equity stake in the company.
In this article we look at a number of cases exemplifying these themes and consider: (i) what has driven the increase in them; (ii) what tactics IPs and their firms have used to defend them; and (iii) what the future holds for this type of litigation.
Cambridge Gas Resuscitated – Farewell Rubin and Singularis?
On September 19, 2018 UNCITRAL published the final text of its new Model Law on Recognition and Enforcement of Insolvency-Related Judgments.
The working group considered the arrested development of the concept of modified universalism following the UK Supreme Court (“UKSC”) judgments in Rubin v Eurofinance SA  1 AC 236 which overturned a previous decision of the Judicial Committee of the Privy Council (“JCPC”) in Cambridge Gas v Navigator Holdings on appeal from the Isle of Man. Continue Reading
A monitor appointed under the Companies’ Creditors Arrangement Act (CCAA) may commence a claim against third parties in the name of the debtor. The purpose of such a claim is obviously to maximize the value of the debtor’s assets for the benefit of its creditors.
In the event the monitor settles a claim with some of the defendants, the latter will usually insist on obtaining a full and complete court-approved release. Courts will generally approve the release if it is fair and reasonable in the circumstances and if the rights (both procedural and substantive) of the non-settling defendants are protected.
In a recent decision, the bar for approving a third-party release was, however, significantly lowered. In the matter of Aquadis,* the court indeed approved a settlement agreement (i) granting release to defendants who did not contribute to the settlement, (ii) offering no procedural protection to the non-settling parties, and (iii) offering very limited protection to the substantive rights of the non-settling parties. Continue Reading
On 13 September 2018 the UK Government published a briefing on the likely response post exit of the UK to cases which currently fall within the Recast EU Insolvency Regulation (2105/848) (“Regulation”)
The full text of its proposal for insolvency cases is as follows:
Cross-border insolvency cooperation
The majority of the Insolvency Regulation, which covers the jurisdictional rules, applicable law and recognition of cross-border insolvency proceedings, would be repealed in all parts of the UK. We would retain the EU rules that provide for the UK courts to have jurisdiction where a company or individual is based in the UK, and the law will ensure that insolvency proceedings can continue to be opened in those circumstances. But after exit, the EU Insolvency Regulation tests would no longer restrict the opening of proceedings, and so it would also be possible to open insolvency proceedings under any of the tests set out in our domestic UK law, regardless of whether (or where) the debtor is based elsewhere in Europe. Continue Reading
On August 16, 2018, the United States Court of Appeals for the Eleventh Circuit issued an opinion in the chapter 9 case of Jefferson County, Alabama, reversing the decision of the District Court and ruling that the doctrine of equitable mootness applies in municipal bankruptcies.
In Jefferson County’s chapter 9 case, the bankruptcy court confirmed the County’s chapter 9 plan over the objection of a group of sewer ratepayers, which provided for the issuance of approximately $1.8 billion of new sewer warrants with maturities that ranged up to 40 years. The chapter 9 plan included a provision that the bankruptcy court would retain jurisdiction throughout the life of the new sewer warrants to enforce a covenant that the county must raise sewer rates in sufficient amounts to cover debt service of the new sewer warrants. On December 1, 2013, two days before the effective date of the chapter 9 plan, the ratepayers filed a notice of appeal to the District Court but did not file a stay pending appeal or request that the appeal be expedited. On Dec. 3, 2013, pursuant to the bankruptcy court’s confirmation order, the County issued the new sewer warrants and creditors received distributions on their prepetition claims.
It is common for a foreign debtor with assets or other connections to the U.S. to request an order enforcing its restructuring plan in the U.S. under Chapter 15 of the Bankruptcy Code. U.S. courts will generally grant comity to a foreign plan if it has been confirmed by a foreign court with jurisdiction and enforcement of that plan in the U.S. would not prejudice the rights of U.S. citizens or otherwise violate domestic public policy. Resolution of all appeals in the foreign jurisdiction is not a pre-requisite to enforcement of that plan by the U.S. court under Chapter 15. See In re Oi S.A., Case No. 16-11791 (Bankr. S.D.N.Y. July 9, 2018). Continue Reading
* a ‘safe harbour’ for directors in respect of the insolvent trading offence; and
* a stay on the exercise of certain rights (including termination rights) for counterparties (or ‘ipso facto’ clauses).
The New ‘Safe Harbour’ for Directors
Directors of Australian companies are liable for any debts incurred while the company is, or is likely to become, insolvent. The reforms introduce a safe harbour for directors to somewhat temper the onerous insolvent trading provisions. Continue Reading