DOCSLIB.ORG

Restructuring & Insolvency

Total Page：16

File Type：pdf, Size：1020Kb

Download full-text PDF Read full-text
Restructuring & Insolvency GETTING THROUGH THE DEAL Restructuring & Insolvency Restructuring & Insolvency Restructuring Contributing editor Bruce Leonard 2017 2017 © Law Business Research 2016 Restructuring & Insolvency 2017 Contributing editor Bruce Leonard The International Insolvency Institute Publisher Law The information provided in this publication is Gideon Roberton general and may not apply in a specific situation. [email protected] Business Legal advice should always be sought before taking Research any legal action based on the information provided. Subscriptions This information is not intended to create, nor does Sophie Pallier Published by receipt of it constitute, a lawyer–client relationship. [email protected] Law Business Research Ltd The publishers and authors accept no responsibility 87 Lancaster Road for any acts or omissions contained herein. The Senior business development managers London, W11 1QQ, UK information provided was verified between Alan Lee Tel: +44 20 3708 4199 September and October 2016. Be advised that this is [email protected] Fax: +44 20 7229 6910 a developing area. Adam Sargent © Law Business Research Ltd 2016 [email protected] No photocopying without a CLA licence. Printed and distributed by First published 2008 Encompass Print Solutions Dan White Tenth edition Tel: 0844 2480 112 [email protected] ISSN 2040-7408 © Law Business Research 2016 CONTENTS Global overview 7 Cyprus 129 Richard Tett Lia Iordanou Theodoulou, Angeliki Epaminonda and Freshfields Bruckhaus Deringer Stylianos Trillides Alan W Kornberg Patrikios Pavlou & Associates LLC Paul, Weiss, Rifkind, Wharton & Garrison LLP Dominican Republic 138 Australia 9 Mary Fernández, Jaime Senior and Melba Alcántara Dominic Emmett and Sabrina Ng Headrick Gilbert + Tobin England & Wales 149 Austria 22 Catherine Balmond and Katharina Crinson Friedrich Jergitsch and Carmen Redmann Freshfields Bruckhaus Deringer Freshfields Bruckhaus Deringer European Union 166 Bahamas 33 Rachel Seeley and Katharina Crinson Leif G Farquharson and Michelle M Pindling-Sands Freshfields Bruckhaus Deringer Graham Thompson France 180 Bahrain 42 Fabrice Grillo and Alexandra Szekely Harnek S Shoker Freshfields Bruckhaus Deringer Freshfields Bruckhaus Deringer Germany 193 Belgium 50 Franz Aleth and Nils Derksen Geert Verhoeven and Satya Staes Polet Freshfields Bruckhaus Deringer Freshfields Bruckhaus Deringer Greece 209 Bermuda 62 Stathis Potamitis and Eleana Nounou Andrew A Martin PotamitisVekris MJM Limited Hong Kong 221 Botswana 68 Georgia Dawson and Look Chan Ho Kwadwo Osei-Ofei Freshfields Bruckhaus Deringer Osei-Ofei Swabi & Co Hungary 232 Brazil 73 Zoltán Varga and Balázs Baranyai Luciana Faria Nogueira and Gabriela Martines Gonçalves Nagy és Trócsányi Law Firm TozziniFreire Advogados India 240 Bulgaria 82 Nihar Mody and Ankit Majmudar Ina Bankovska and Tsvetelina Stoilova Platinum Partners Kinkin & Partners Indonesia 249 Canada 91 Herry N Kurniawan, Theodoor Bakker and Bruce Leonard Ridzky Firmansyah Amin Chair, The International Insolvency Institute Ali Budiardjo, Nugroho, Reksodiputro Craig Mills Miller Thomson LLP Isle of Man 257 Stephen Dougherty and Tara Cubbon Cayman Islands 101 DQ Advocates Andrew Bolton and Andrew Jackson Appleby Italy 264 Raffaele Lener and Giovanna Rosato China 110 Freshfields Bruckhaus Deringer Frank Li, Allan Chen and Rebecca Lu Fangda Partners Japan 282 Kazuki Okada, Shinsuke Kobayashi and Daisuke Fukushi Croatia 120 Freshfields Bruckhaus Deringer Pavo Novokmet and Andrej Skljarov Žurić i Partneri 2 Getting the Deal Through – Restructuring & Insolvency 2017 © Law Business Research 2016 CONTENTS Luxembourg 297 Spain 395 Christel Dumont Silvia Angós Dentons Luxembourg Freshfields Bruckhaus Deringer Malaysia 305 Sweden 406 Lee Shih and Nathalie Ker Mathias Winge and Henrik Davidsson Skrine Setterwalls Advokatbyrå Mexico 312 Switzerland 415 Darío U Oscós Coria and Darío A Oscós Rueda Christoph Stäubli* Oscós Abogados Walder Wyss Ltd Netherlands 325 Thailand 429 Michael Broeders and Rodolfo van Vlooten Suntus Kirdsinsap, Natthida Pranutnorapal, Freshfields Bruckhaus Deringer Piyapa Siriveerapoj and Patinya Sriwatcharodom Weerawong, Chinnavat & Peangpanor Ltd Nigeria 341 Emmanuel Ekpenyong and Cinderella Agunanna Turkey 438 Fred-young & Evans LP Çağlar Kaçar Kaçar, Attorneys at Law Norway 348 Stine D Snertingdalen and Ingrid E S Tronshaug United Arab Emirates 448 Kvale Advokatfirma DA Pervez Akhtar and William Coleman Freshfields Bruckhaus Deringer Peru 356 Rafael Corzo de la Colina, Renzo Agurto Isla and United States 458 Lisbeth Benavides Kolind-Hansen Alan W Kornberg and Claudia R Tobler Miranda & Amado Abogados Paul, Weiss, Rifkind, Wharton & Garrison LLP Romania 365 Vietnam 470 Bogdan Bibicu Thanh Tien Bui Kinstellar Freshfields Bruckhaus Deringer Russia 372 Quick reference tables 480 Dmitry Surikov, Maria Zaitseva and Svetlana Tolstoukhova Freshfields Bruckhaus Deringer Singapore 386 Sean Yu Chou, Manoj Pillay Sandrasegara and Mark Choy WongPartnership LLP www.gettingthedealthrough.com 3 © Law Business Research 2016 Freshfields Bruckhaus Deringer ENGLAND & WALES England & Wales Catherine Balmond and Katharina Crinson Freshfields Bruckhaus Deringer Legislation dramatically. Where relevant, we have referenced the consultation in the questions where the topic may be impacted. 1 What legislation is applicable to insolvencies and reorganisations? What criteria are applied in your country to Determining whether a debtor is insolvent determine if a debtor is insolvent? ‘Insolvency’ itself is not defined by the Insolvency Act. Instead the Act General insolvency legislation contains the concept of a company being ‘unable to pay its debts’. A The legislation principally applicable to the insolvency of companies company is deemed to be unable to pay its debts if: incorporated in England and Wales is the Insolvency Act 1986 (the • it has not paid a claim for a sum due to a creditor exceeding £750 Insolvency Act) as amended from time to time. The Insolvency Act is within three weeks of service of with a written demand in the pre- supplemented by subordinate legislation, the most important of which scribed form (known as a statutory demand); are the Insolvency Rules 1986 (the Insolvency Rules). The Company • an execution or judgment against the company is unsatisfied; Directors Disqualification Act 1986 (the CDDA 1986) deals with the • it is proved to the satisfaction of the court that it is unable to pay position of directors of insolvent companies. its debts as they fall due, also having regard to contingent and pro- In relation to reorganisations, the Companies Act 2006 is also rele- spective liabilities, (generally known as ‘cash flow insolvency’); or vant as this sets out the provisions concerning schemes of arrangement • if it is proved to the satisfaction of the court that the value of the (discussed further in question 11 below). company’s assets are less than the amount of its liabilities, taking As at the time of writing, the UK remains part of the European into account contingent and prospective liabilities, (commonly Union, and, hence, the EC Regulation on Insolvency Proceedings known as the ‘balance sheet test’). The highest court in England, 2000 applies (see also ‘Update and trends’). This affects cross-border the Supreme Court, held in BNY Corporate Trustee Services Ltd v insolvencies and is discussed in more detail in questions 29 and 47 Eurosail UK 2007-3BL plc [2013] UKSC 28 that the court is required and the chapter on the European Union. The Cross-Border Insolvency to make an assessment of the company’s assets and liabilities and Regulations 2006 (which incorporated into English law the UNCITRAL to decide whether, on the balance of probabilities (making proper Model Law on Cross-Border Insolvency) are also relevant and are dis- allowance for contingent and prospective liabilities), the company cussed in question 47. cannot reasonably be expected to meet those liabilities. On 25 May 2016, the UK government issued a consultation paper ‘A review of the corporate insolvency framework – options for reform’. Courts The consultation focuses on four areas: • the creation of a new moratorium: This will provide companies 2 What courts are involved in the insolvency process? Are there with a moratorium on creditor action, initially of three months, restrictions on the matters that the courts may deal with? subject to eligibility and qualifying conditions, with some supervi- There are no courts that deal solely with insolvency procedures. The sion by an insolvency practitioner; High Court can wind up any company incorporated in England and • helping businesses to continue to trade through a restructuring Wales (and in some cases, foreign companies – see question 3). Any process: Providers of supplies essential to the particular business criminal matters must be dealt with by the relevant criminal court. may be compelled to continue to supply, on the same terms as pre- viously, and notwithstanding any contractual termination rights, Excluded entities and excluded assets through any moratorium and subsequent administration or com- 3 What entities are excluded from customary insolvency pany voluntary arrangement; proceedings and what legislation applies to them? What • developing a flexible restructuring plan: Proposals to allow assets are excluded from insolvency proceedings or are stakeholders (including secured and unsecured creditors) to be exempt from claims of creditors?
Load more

Recommended publications
  • All You Need to Know About Becoming an Insolvency Practitioner In
    REMUNERATION OF INSOLVENCY PRACTITIONERS This time we bring you a real scoop. Insolvency law, legal status and remuneration of the insolvency practitioners, has completely changed in Poland! Judge Anna Hrycaj, who presented this subject at the ACC conference in Warsaw last year, and who was asked to adapt her presentation to the needs of our journal, was obliged to write a new article, because Poland was surprised a couple of weeks ago by a new law… So, we are proud to offer you an analysis of the new requirements for becoming an IP in Poland. If you have any questions, please write to [email protected] or [email protected] for further information. All you need to know about becoming an Insolvency Practitioner in Europe: Poland We have already looked at the legal status and remuneration of insolvency practitioners in France, Austria and Latvia. Here we discuss what happens in Poland The legal status of the Insolvency and the court does not deprive the • He/she has the full legal capacity to act; Practitioner (IP) in Poland is soon to be debtor of the right to administer the • He/she is under 65; regulated not only by the provisions of estate; • He/she received higher education the Bankruptcy and Rehabilitation Law, • The receiver ( zarz ądca ), who is qualifications and obtained an MA or 28 February 2003, but also by the appointed in the case of insolvency any other correspondent title in the provisions of the Polish law on IPs which with the possibility of making an member states mentioned above; was enacted by the Polish Parliament on arrangement with creditors, but the • He/she has an unblemished 9 May 2007.
    [Show full text]
  • Creditors' Challenges to Administrators and Liquidators
    CREDITORS’ CHALLENGES TO ADMINISTRATORS AND LIQUIDATORS – AN OVERVIEW REPRINTED FROM: CORPORATE DISPUTES MAGAZINE OCT-DEC 2018 ISSUE ���������corporate ��������disputes ������������ C��D www.corporatedisputesmagazine.com ������������������ ������� ������������������������������� ������������ �������������������� ��������� ����������������������������� ���������������������� ����������������� www.corporatedisputesmagazine.com Visit the website to request a free copy of the full e-magazine Published by Financier Worldwide Ltd corporatedisputes@financierworldwide.com © 2018 Financier Worldwide Ltd. All rights reserved. corporate CDdisputes www.corporatedisputesmagazine.com 2 CORPORATE DISPUTES Oct-Dec 2018 www.corporatedisputesmagazine.com PERSPECTIVES PERSPECTIVES CREDITORS’ CHALLENGES TO ADMINISTRATORS AND LIQUIDATORS – AN OVERVIEW BY ASHKHAN CANDEY, NICK WRIGHT AND JAMES PARTRIDGE > CANDEY nsolvency practitioners occupy a powerful and was simply wrong, with the Court also having a responsible role in administrations and liquidations. general ability to interfere where office holders have IThey are often a major force for good, tackling misapplied the law as Neuberger J, as he then was, those who have raided companies for their own made clear in CE King Ltd. personal benefit to the unlawful detriment of creditors As well as being the arbiter of their decisions at law, and shareholders. Their decisions may be based on a the court also has an inherent jurisdiction to control misunderstanding of the law, and they could (rarely) administrators
    [Show full text]
  • How to Become an Insolvency Practitioner In
    REMUNERATION OF INSOLVENCY PRACTITIONERS The article is provided by Devorah Burns of the national organisation The Insolvency Service, based in London. The Insolvency Service operates under a statutory framework – mainly the Insolvency Acts 1986 and 2000, the Company Directors Disqualifications Act 1986 and the Employment Rights Act 1996. If you have any questions on this article, please send them to the author at Devorah.Burns @insolvency.gsi.gov.uk or [email protected] We welcome further contributions to this series, so if you would like to inform our readers of the regulations for becoming an IP in your jurisdiction, please contact the editors. All you need to know about becoming an Insolvency Practitioner: Great Britain The latest in our series of articles on the legal status and remuneration of insolvency practitioners examines the British rules and regulations Access to to pay an annual fee, which covers the costs Insolvency Practitioners in the profession associated with authorisation and England, Wales & Scotland. regulation. The Insolvency Service is responsible for The Secretary of State (SoS) may authorise EU Directive 2005/36 provides for the the regulation of insolvency practitioners insolvency practitioners, as may seven recognition of professional qualifications working in Great Britain (i.e. England, professional bodies (the RPBs). The RPBs throughout the relevant states and The Wales & Scotland) and the Department for represent accountants, lawyers and those European Communities (Recognition of Enterprise, Trade & Investment in Northern who only work as insolvency practitioners. Professional Qualifications) Regulations Ireland is responsible for the regulation Most insolvency practitioners are 2007 (The Regulations) make provision of insolvency practitioners who work in authorised by one of the RPBs.
    [Show full text]
  • UK (England and Wales)
    Restructuring and Insolvency 2006/07 Country Q&A UK (England and Wales) UK (England and Wales) Lyndon Norley, Partha Kar and Graham Lane, Kirkland and Ellis International LLP www.practicallaw.com/2-202-0910 SECURITY AND PRIORITIES ■ Floating charge. A floating charge can be taken over a variety of assets (both existing and future), which fluctuate from 1. What are the most common forms of security taken in rela- day to day. It is usually taken over a debtor's whole business tion to immovable and movable property? Are any specific and undertaking. formalities required for the creation of security by compa- nies? Unlike a fixed charge, a floating charge does not attach to a particular asset, but rather "floats" above one or more assets. During this time, the debtor is free to sell or dispose of the Immovable property assets without the creditor's consent. However, if a default specified in the charge document occurs, the floating charge The most common types of security for immovable property are: will "crystallise" into a fixed charge, which attaches to and encumbers specific assets. ■ Mortgage. A legal mortgage is the main form of security interest over real property. It historically involved legal title If a floating charge over all or substantially all of a com- to a debtor's property being transferred to the creditor as pany's assets has been created before 15 September 2003, security for a claim. The debtor retained possession of the it can be enforced by appointing an administrative receiver. property, but only recovered legal ownership when it repaid On default, the administrative receiver takes control of the the secured debt in full.
    [Show full text]
  • Bankrupt Subsidiaries: the Challenges to the Parent of Legal Separation
    ERENSFRIEDMAN&MAYERFELD GALLEYSFINAL 1/27/2009 10:25:46 AM BANKRUPT SUBSIDIARIES: THE CHALLENGES TO THE PARENT OF LEGAL SEPARATION ∗ Brad B. Erens ∗∗ Scott J. Friedman ∗∗∗ Kelly M. Mayerfeld The financial distress of a subsidiary can be a difficult event for its parent company. When the subsidiary faces the prospect of a bankruptcy filing, the parent likely will need to address many more issues than simply its lost investment in the subsidiary. Unpaid creditors of the subsidiary instinctively may look to the parent as a target to recover on their claims under any number of legal theories, including piercing the corporate veil, breach of fiduciary duty, and deepening insolvency. The parent also may find that it has exposure to the subsidiary’s creditors under various state and federal statutes, or under contracts among the parties. In addition, untangling the affairs of the parent and subsidiary, if the latter is going to reorganize under chapter 11 and be owned by its creditors, can be difficult. All of these issues may, in fact, lead to financial challenges for the parent itself. Parent companies thus are well advised to consider their potential exposure to a subsidiary’s creditors not only once the subsidiary actually faces financial distress, but well in advance as a matter of prudent corporate planning. If a subsidiary ultimately is forced to file for chapter 11, however, the bankruptcy laws do provide unique procedures to resolve any existing or potential litigation between the parent and the subsidiary’s creditors and to permit the parent to obtain a clean break from the subsidiary’s financial problems.
    [Show full text]
  • Asset Protection Planning (With Audit Checklist)
    Asset Protection Planning (With Audit Checklist) Gideon Rothschild A. Introduction 1. Litigation environment creates greater exposure to risk of loss. a. Expanded theories of liability (such as McDonald’s coffee spill); b. Higher jury awards; c. Unpredictable judges. 2. Traditional forms of protection have become inadequate. a. Insurance: i. Exclusions; ii. Policy limits; iii. Solvency of insurer; iv. Policy lapses. b. Incorporation: i. Piercing corporate veil; ii. Shareholder and officer liability. 3. Candidates For Asset Protection Planning a. Professionals; Gideon Rothschild, J.D., CPA, is with Moses & Singer LLP, in New York, New York. ALI-ABA Estate Planning Course Materials Journal | 25 26 | ALI-ABA Estate Planning Course Materials Journal April 2009 b. Officers, directors, and fiduciaries; c. Real estate owners with exposure to environmental claims; d. Individuals exposed to lawsuits arising from claims alleging negligent acts, intentional torts (dis- crimination, harassment, and libel), or contractual claims; e. Prenuptial alternative. 4. Asset protection concepts are not new: a. Incorporation of business activities; b. Formation of LLCs, LLPs, and LPs; c. Offshore trusts used traditionally to avoid forced heirship or government expropriation; d. Exemption and pre-bankruptcy planning. 5. Asset protection is part of an overall wealth preservation process, including: a. Investment diversification; b. Insurance adequacy; c. Income tax planning; d. Estate tax planning; e. Wealth protection. B. Fraudulent Conveyance Issues 1. Law Varies By Jurisdiction. Transfers proper in one state may be held improper elsewhere, but certain gener- ally accepted principles govern creditors. Common law usually divides creditors into three categories: a. Present Creditors. Those persons of whom the transferor has notice when making transfers.
    [Show full text]
  • Dealing with Secured Lenders1
    CHAPTER TWO Dealing with Secured Lenders1 David Hillman2 Mark Shinderman3 Aaron Wernick4 With investors continuing to pursue higher yields, the market for secured debt has experienced a resurgence since the depth of the fi nancial crisis of 2008. For borrowers, the lenders’ willingness to make these loans has translated to increased liquidity and access to capital for numerous purposes, including (i) providing working capital and funding for general corporate purposes; (ii) funding an acquisition-related transaction or a recapitalization of a company’s balance sheet; or (iii) refi nancing a borrower’s existing debt. The increased debt loads may lead to fi nancial distress when a borrower’s business sags, at which point management will typically turn to its secured lenders to begin negotiations on the restructuring of the business’s debt. Consequently, the secured lenders usually take the most active role in monitoring the credit and responding to problems when they fi rst arise. Secured loans come in many different forms and are offered from a range of different investors. The common feature for secured debt is the existence of a lien on all or a portion of the borrower’s assets. Following is a brief overview of the common types of secured lending: Asset-Based Loans. The traditional loan market consisted of an asset based lender (traditionally a bank or commercial fi nancing institution) providing revolving loans, term loans, and letters of credit secured by a fi rst priority lien on accounts receivable, inventory, equipment, and 1. Special thanks to Douglas R. Urquhart and Roshelle Nagar of Weil, Gotshal & Manges, LLP for their contributions to earlier editions of this chapter.
    [Show full text]
  • Restructuring Risk in Credit Default Swaps: an Empirical Analysis∗
    Restructuring Risk in Credit Default Swaps: An Empirical Analysis∗ Antje Berndt† Robert A. Jarrow‡ ChoongOh Kang§ Current Version: November 18, 2005 Preliminary and Incomplete Abstract This paper estimates the price for bearing exposure to restructuring risk in the U.S. corporate bond market during 2000-2005, based on the relationship between quotes for default swap (CDS) contracts that include restructuring as a covered default event and contracts that do not. We find that on average the premium for exposure to restructuring risk amounts to 6% to 8% of the value of protection against non-restructuring default events. The increase in the restructuring premium in response to an increase in rates on default swaps that do not include restructuring as a covered event is higher for high-yield CDS and lower for investment-grade firms, and depends on firm-specific balance-sheet and macroeconomic variables. We observe that firms that offer a distressed exchange often experience a steep decline in their distance to default prior to the completion of the exchange. As an application, we propose a reduced-form arbitrage-free pricing model for default swaps, allowing for a potential jump in the risk-neutral non-restructuring default intensity if debt restructuring occurs. ∗We thank Lombard Risk for Default Swap data. We are grateful to Jean Helwege, Yongmiao Hong, Philip Protter and Roberto Perli for useful comments. †Tepper School of Business, Carnegie Mellon University. ‡Johnson Graduate School of Management, Cornell University. §Department of Economics, Cornell University. 1 Introduction This paper estimates the price for bearing exposure to restructuring risk in the U.S.
    [Show full text]
  • Insolvency Review Insolvency Review
    the Insolvency Review Insolvency Insolvency Review Sixth Edition Editor Donald S Bernstein Sixth Edition Sixth lawreviews © 2018 Law Business Research Ltd Insolvency Review Sixth Edition Reproduced with permission from Law Business Research Ltd This article was first published in November 2018 For further information please contact [email protected] Editor Donald S Bernstein lawreviews © 2018 Law Business Research Ltd PUBLISHER Tom Barnes SENIOR BUSINESS DEVELOPMENT MANAGER Nick Barette BUSINESS DEVELOPMENT MANAGERS Thomas Lee, Joel Woods SENIOR ACCOUNT MANAGER Pere Aspinall ACCOUNT MANAGERS Jack Bagnall, Sophie Emberson, Katie Hodgetts PRODUCT MARKETING EXECUTIVE Rebecca Mogridge RESEARCHER Keavy Hunnigal-Gaw EDITORIAL COORDINATOR Gavin Jordan HEAD OF PRODUCTION Adam Myers PRODUCTION EDITOR Martin Roach SUBEDITOR Helen Smith CHIEF EXECUTIVE OFFICER Paul Howarth Published in the United Kingdom by Law Business Research Ltd, London 87 Lancaster Road, London, W11 1QQ, UK © 2018 Law Business Research Ltd www.TheLawReviews.co.uk No photocopying: copyright licences do not apply. The information provided in this publication is general and may not apply in a specific situation, nor does it necessarily represent the views of authors’ firms or their clients. Legal advice should always be sought before taking any legal action based on the information provided. The publishers accept no responsibility for any acts or omissions contained herein. Although the information provided is accurate as of September 2018, be advised that this is
    [Show full text]
  • Brexit: a Unique Irish Opportunity for Cross-Border Restructuring? 14.02.2019
    briefing Brexit: a Unique Irish Opportunity for Cross-Border Restructuring? 14.02.2019 Certainty is a key element in any business planning. For corporate restructuring practitioners who are planning or working on cross border transactions, the uncertainty relating to Brexit and the departure of the United Kingdom from the European Union (“EU”) may have long-term significant consequences and a “no-deal” Brexit (without a withdrawal agreement and the certainty of a transition period) will have immediate and significant consequences for any such cross-border transaction. In this context, Irish law and the Irish Courts can provide practical and effective solutions to assist corporates (and their advisors) restructure their business and affairs in a straight-forward and easily understood manner. It is also an opportunity for the Irish legal system to demonstrate its value to international practitioners. This opportunity was also recognised in a recent proposal document to the Irish Government produced by the Law Society of Ireland and the Bar Council of Ireland entitled “Promoting Ireland as a leading centre globally for international legal services” (the “Report”). In the context of the UK’s exit from the EU, the Report states that “we foresee a meaningful role for Irish law in certain areas and industry sectors allied with the provision of a greater range of legal services in Ireland for the benefit of international and Irish business. In a number of sectors, we believe that Ireland as a location and the Irish law and the Irish Courts are and can be advantageous contractual choices for international clients (now or in the future)”.
    [Show full text]
  • Cross-Border Recognition of Insolvency and Restructuring Proceedings Post-Brexit
    CROSS-BORDER RECOGNITION OF INSOLVENCY AND RESTRUCTURING PROCEEDINGS POST-BREXIT AND RESTRUCTURING PROCEEDINGS INSOLVENCY OF RECOGNITION CROSS-BORDER KEY POINTS Despite the announcement of a new free trade agreement between the EU and UK, Feature we are effectively in a “no deal” scenario when it comes to the recognition of insolvency proceedings and, more generally, civil judgments, between the EU and the UK. The reciprocal, automatic recognition frameworks are no more. Debtors and insolvency practitioners must now navigate through a patchwork of international treaties, European legislation, domestic legislation and common law to assess whether inbound/outbound recognition is forthcoming and, if it is, what that “recognition” really looks like in practice. The lack of an automatic recognition regime will likely increase the cost, complexity and time taken to complete cross-border restructurings and insolvencies. However, it should not be equated with a loss of recognition per se. There may be more pathways to navigate but the analysis is not, by any means, insurmountable. Over time, as debtors become more familiar with the post-Brexit legal landscape, a clear and well-trodden path to obtaining recognition will likely emerge. Authors Philip Wells and Lucy Aconley How to get recognised: cross-border recognition of insolvency and restructuring proceedings post-Brexit This article summarises the post-Brexit position regarding inbound and outbound This article focusses on cross-border recognition of insolvency and restructuring proceedings
    [Show full text]
  • Irish Examinership: Post-Eircom a Look at Ireland's Fastest and Largest
    A look at Ireland’s fastest and largest restructuring through examinership and the implications for the process Irish examinership: post-eircom A look at Ireland’s fastest and largest restructuring through examinership and the implications for the process* David Baxter Tanya Sheridan A&L Goodbody, Dublin A&L Goodbody [email protected] The Irish telecommunications company eircom recently successfully concluded its restructuring through the Irish examinership process. This examinership is both the largest in terms of the overall quantum of debt that was restructured and also the largest successful restructuring through examinership in Ireland to date. The speed with which the restructuring of this strategically important company was concluded was due in large part to the degree of pre-negotiation between the company and its lenders before the process commenced. The eircom examinership demonstrated the degree to which an element of pre-negotiation can compliment the process. The advantages of the process, having been highlighted through the eircom examinership, might attract distressed companies from other EU jurisdictions to undertake a COMI shift to Ireland in order to avail of this process. he eircom examinership was notable for both the Irish High Court just 54 days after the companies Tsize of this debt restructuring and the speed in entered examinership. which the process was successfully concluded. In all, This restructuring also demonstrates the advantages €1.4bn of a total debt of approximately €4bn was of examinership as a ‘one-stop shop’: a flexible process written off the balance sheets of the eircom operating that allows for both the write-off of debt and the change companies.
    [Show full text]