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Global Insolvency & Restructuring Review 2012/13

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Global Insolvency & Restructuring Review 2012/13 Global Insolvency & Restructuring Review 2012/13 Global Insolvency & Restructuring Review 2012/13 Edited by Lisa Paul Editor: Lisa Paul Advertising & Co-publishing Sales Managers: Grant Lee and Roger Harper Directory Research Manager: Sophia Telfer Advertising Administrator: Karolina Lubecka Distribution Manager: Lisa Huxley Marketing Manager: Els Despriet Publisher: Adrian Hornbrook Editorial Office: 11 North Hill, Colchester, Essex CO11DZ, UK Tel: +44 1206 579591, Fax: +44 1206 560121 Website: www.euromoney-yearbooks.com To order any Euromoney product, call the Euromoney Hotline +44 (0) 20 7779 8999 or in the US +1 212 224 3570 or via email at [email protected] Origination by: Trait Design Limited, Tiptree, Essex, UK Printed by: Wyndeham Grange Limited, Brighton, W. Sussex, UK Although every effort has been made to ensure the accuracy of the information contained in this book the publishers can accept no liability for inaccuracies that may appear. All rights reserved. No part of this publication may be reproduced in any material form by any means whether graphic, electronic, mechanical or means including photocopying, or information storage and retrieval systems without the written permission of the publisher and where necessary any relevant other copyright owner. This publication – in whole or in part – may not be used to prepare or compile other directories or mailing lists, without written permission from the publisher. The use of cuttings taken from this directory in connection with the solicitation of insertions or advertisements in other publications is expressly prohibited. Measures have been adopted during the preparation of this publication which will assist the publisher to protect its copyright. Any unauthorised use of this data will result in immediate proceedings. © Copyright rests with the publishers, Euromoney Trading Ltd, England. ISBN 978 178137 011 7 Contents Foreword: Where are we now… and where are we headed? 1 Gordon Stewart, President, INSOL International and Partner, Allen & Overy LLP Harmonising and modernising insolvency law: The work of the United Nations 4 Commission on International Trade Law International Trade Law Division (UNCITRAL Secretariat), United Nations The importance of effective and efficient resolution of non-performing loans 8 World Bank Group Generating value creation from distressed debt assets 12 The Carlyle Group IBA Section on Insolvency, Restructuring and Creditors’ Rights (SIRC) 16 Haynes and Boone, LLP, VISCHER Ltd and IBA-SIRC Reflections on shipping and offshore restructurings 19 BA-HR International Women’s Insolvency and Restructuring Confederation (IWIRC) 24 International Women’s Insolvency and Restructuring Confederation (IWIRC) Shifting sands: Insolvency and restructuring law reform in the Middle East 26 Latham & Watkins LLP COUNTRY REVIEWS Australian restructuring in the wake of the Eurozone crisis 34 PPB Advisory Back to the rescue: How the 2011 Belgian bank crisis was (mis)managed 39 McKenna Long & Aldridge LLP The close relationship between insolvency practitioners and financial regulators in 45 the Caribbean and Bermuda KRyS Global Bermuda – The Cambridge Gas in offshore restructuring and insolvency: Not fit for all purposes 49 Appleby (Bermuda) Limited Corporate restructuring and insolvency: The Cyprus perspective 54 Tornaritis Law Firm Brazil – Opportunities for restructuring in family-owned companies 60 KPMG Brazil Brazilian insolvency system seeks maturity 64 RZM Advogados Contents Strategies for use of bankruptcy law by creditors in China 67 Zhongzi Law Office New Danish insolvency regulation has not been adapted by the market. 71 Restructuring is still based on out-of-court restructurings Deloitte Restructuring Services Insolvency and corporate restructuring issues in Finland: Current examples of swift restructuring proceedings 77 Castrén & Snellman Attorneys Ltd. Finland – Financial analysis and M&A transactions as part of enterprise restructuring 81 Grant Thornton Finland Oy Grasping the French restructuring market 84 DC Advisory Partners Recent developments in French restructurings 89 Allen & Overy LLP / SCP Santoni & Associés Restructuring trends in Germany 95 PricewaterhouseCoopers Objective accomplished? Improving restructuring options in Germany through insolvency reform (“ESUG”) 100 Salans LLP Rehabilitation: A new restructuring proceeding for Greece 104 Potamitisvekris Winding-up proceedings of financial undertakings in Iceland 109 LOGOS legal services Ireland – Corporate debt restructuring: Solutions in a distressed marketplace 114 PwC Ireland Italy – Settlement of over-indebtedness crises 118 Lombardi Molinari e Associati Luxembourg – Being a bondholder in a distressed situation: The debt equity swap route – a vessel fraught with pitfalls? 122 OPF Partners Insolvency and restructuring: The Malaysian position 127 Shearn Delamore & Co. Recent developments in Dutch restructurings 131 Loyens & Loeff N.V. Contents Restructuring in Portugal – the time has come! 137 KPMG Portugal Russia: Emerging playground for a savvy distressed investor 142 Alvarez and Marsal Review of developments in insolvency law in Singapore for 2011 147 Drew & Napier LLC Business recovery, restructuring and performance improvement in South Africa 152 PricewaterhouseCoopers Business rescue in South Africa 157 Bowman Gilfillan Spain: Key new legislation introduced by the Insolvency Reform Law 162 Garrigues Share pledges and enforcement in Sweden: The battle between the pledgor and the pledgee 167 Setterwalls Advokatbyrå Translation risks and their impact upon company valuation: An overview of the Swiss public companies 171 Ernst & Young AG Pitfalls for a foreign entity in distress that maintains assets or an operation in Switzerland 175 Homburger AG Corporate restructuring in Thailand 180 Hunton & Williams (Thailand) Limited Recent developments in Ukrainian distressed debt disposal strategies 185 Vasil Kisil & Partners Directory 191 Contributors 258 Advertisers index 262 Corporate Recovery & Insolvency Fraud Investigation & Forensic Accounting Litigation Support Business Valuations Regulatory Compliance Money Laundering Investigations Business Advisory Services Settingg a pathpath forfoor success. "%" (&"/ %'&%') '%+'. $ $(%"+$. 0'# ( )# % $&$$)) $ !$%,"" &'%((%$"( ,) &')" -&')( "%"-&'$ $ ) "). )% &'%+ % )+ (%*$ + &'%+ (%"*)%$( )%%#&"- '%((%'' ((*( $) '( % %'&%') %+'.. $(%"+$.. %'$( %*$)$ $*($((+(%'. '+() %+' &'%((%$"( ,% ,%'! '%# %00( $ %*' *'()%$( %*' "$)( $0) '%# "%(!$) )# % '%((%$" %*$)$)( ,.'( ')0 '* -#$'( $ ')0 $)%$. *$'$ &"()( TMTM '%*+"$ )%$ $ )%'%*$(( , ' %##)) )%$ ) "%" "' $ %*' $*()'.. "+'$ '(*")( $ +$ -&)%$"+"* %' %*' "$)( GlobalGlobal ComplexComplex Issues.Issues. Resolved.Resolved. www.KRyS-Global.comwwww..KR.KRyS-Global.com Cayman Islands ')('$ ("$( #( Bermuda Foreword: Where are we now… and where are we headed? by Gordon Stewart, President, INSOL International and Partner, Allen & Overy LLP Opacity Never in my professional career have we (in the UK, in Europe, globally…) been in such a time of flux nor faced such a period of uncertainty. Economic challenges as great as have been faced in a generation (or three) confront us. Outcomes are unclear. Yet an opaque time such as this presents opportunities. It can provide the impetus and motivation – the incentive – for change. Global trade – globalisation – is a fact. Cross-border activity has never been so great. This involves the movement of goods and services and also of ideas, from one legal jurisdiction to another. The law must not only keep up with 1 these developments but it must facilitate them or it will fail those it seeks to serve. In both my part-time job as President of INSOL International and my full-time job as head of Allen & Overy’s Global Restructuring Group, I see change and the opportunity for change in the domestic insolvency and restructuring laws of jurisdictions in both emerging markets and the developed world. I also see the tantalising prospect of mankind’s great achievement – what sets us apart from the rest of the animal kingdom – that of our capacity for co-operation to mutual benefit, being seen in the fields of cross-border insolvency recognition and, more dramatically, bank resolution. Emerging markets and capacity building There are three inter-linked areas in which emerging markets need to build capacity. They need good laws. A good terminal liquidation law, an efficient, modern rescue statute, together with a developing rescue culture. And a humane personal bankruptcy law entitling individuals and sole traders to have a second chance, hence fostering, or at a 2 minimum not unduly penalising, entrepreneurial activity. Related to these fundamental laws are good laws of credit, which encourage inward flows of capital and investment, and corporate governance laws to strike a balance between not unduly threatening directors whose companies are going through a period of financial difficulty yet checking any tendency on their part to be reckless and trade on at the expense of their creditors. Now, new laws create rights and, with them, expectations. Expectations that the country’s courts and judges will enforce those rights speedily, with efficiency and certainty. So a good route to justice is a must. If a mature and successful court system seems a long way in the distance for some jurisdictions then there are short-term fixes available, pending the ideal medium-term solution. Perhaps for example outsourcing is a way forward: witness the widespread adoption of English law
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