Cross-Border Insolvency Ii
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An Empirical Investigation of Corporate Division 1 Proposals in the Toronto Bankruptcy Region Jacob S
Osgoode Hall Law Journal Article 3 Volume 41, Number 4 (Winter 2003) An Empirical Investigation of Corporate Division 1 Proposals in the Toronto Bankruptcy Region Jacob S. Ziegel Rajvinder S. Sahni Follow this and additional works at: http://digitalcommons.osgoode.yorku.ca/ohlj Article Citation Information Ziegel, Jacob S. and Sahni, Rajvinder S.. "An Empirical Investigation of Corporate Division 1 Proposals in the Toronto Bankruptcy Region." Osgoode Hall Law Journal 41.4 (2003) : 665-710. http://digitalcommons.osgoode.yorku.ca/ohlj/vol41/iss4/3 This Article is brought to you for free and open access by the Journals at Osgoode Digital Commons. It has been accepted for inclusion in Osgoode Hall Law Journal by an authorized editor of Osgoode Digital Commons. An Empirical Investigation of Corporate Division 1 Proposals in the Toronto Bankruptcy Region Abstract In 1992, Canada's Parliament approved major amendments to the Bankruptcy and Insolvency Act (BIA). The amendments included the adoption of a new Commercial Proposal regime for the reorganization of insolvent Canadian businesses with a view to enabling more enterprises to stay in business and avoid liquidation under the other provisions of the BIA. This article reports the results of an empirical study of all Division 1 corporate proposals filed in Toronto between November 1992 and December 1996 to determine how the new proposal regime works in practice. The uthora s' overall conclusion is that the 1992 amendments have achieved their goals, both procedurally and substantively. However, the authors also find that there is room for improvement and, in particular, see a need for a better screening procedure to discourage the initiation of unmeritorious cases, durable resolution. -
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 -
Legislative Recognition of the Public Creditor Access to the Partial
Middle-East Journal of Scientific Research 16 (12): 1632-1636, 2013 ISSN 1990-9233 © IDOSI Publications, 2013 DOI: 10.5829/idosi.mejsr.2013.16.12.12069 Legislative Recognition of the Public Creditor Access to the Partial Seizure of Property and the Future Revenues of the Russian Citizen-The Debtor, in Russia and Abroad Tatyana Mikhailovna Zhukova and Ksenya Sergeevna Kondratyeva Perm State National Research University, Perm, Russia Abstract: In the article, the variants are given of the Russian and the foreign regulation of the public creditor access to the partial seizure of the property and the future revenues of the debtor and the conclusion is made about the possibility and the necessity to introduce such a mechanism of relieving from debts in the Russian Federation. The authors performed a comparative analysis of the legislation in England, the USA, Canada and Russia. Based on the analysis the conclusion is made that modern systems have a tendency of applying the bankruptcy regulation systems depending on the size of the debt and the debtor’s income. The authors believe that in the bankruptcy system, it is necessary to research the procedures that prevent declaring bankrupt and in particular-the procedures that give the debtor an opportunity to get relieving from debts in accordance with the legislation, avoiding the full sale of the property of the private person. To improve the existing bankruptcy prevention system, it is proposed to legally define the debt plan as a procedure allowing the debtor to change the conditions of the debt repayment as compared to the bankruptcy procedures, at the expense of the future revenues during several years and possible partial sale of the property, guided by the arbitration manager and controlled by the arbitration court. -
Report on the UNCITRAL Model Law
COMPANY LAW REVIEW GROUP UNCITRAL MODEL LAW ON CROSS-BORDER INSOLVENCY November 2018| 1 November 2018| 2 Contents Page Chairperson’s Letter to the Minister ................................................................................ 6 Executive Summary .......................................................................................................... 7 Chapter 1. Introduction .................................................................................................... 8 1.1 The Company Law Review Group ................................................................. 8 1.2 CLRG Work Programme 2018-2020 .............................................................. 8 1.3 Cross-border Insolvency ................................................................................ 8 1.4 The UNCITRAL Model Law ............................................................................. 9 1.5 Context for the potential adoption of UNCITRAL Model Law on Cross Border Insolvency in Ireland ................................................................ 11 1.6 The Scope and Application of the Model Law in an Irish Context .............. 11 1.7 General Approach ....................................................................................... 12 Chapter 2. Cross-border Corporate Insolvency Law in Ireland ...................................... 13 2.1 Introduction ................................................................................................ 13 2.2 Section 1417, Companies Act 2014 ............................................................ -
Bankruptcy and Restructuring
BANKRUPTCY AND RESTRUCTURING Regulations and Product Standards 165 Bankruptcy and Insolvency Act (BIA) 165 BIA Proposals 167 Companies’ Creditors Arrangement Act (CCAA) 169 By James Gage Bankruptcy and Restructuring 165 BANKRUPTCY AND RESTRUCTURING Regulations and Product Standards Under Canadian constitutional law, the federal government has exclusive legislative control over bankruptcy and insolvency matters. Insolvency proceedings in Canada may take a variety of diff erent forms. When a corporation WHEN A becomes insolvent, two options are generally CORPORATION available: (i) liquidate the corporation’s BECOMES INSOLVENT, assets for the benefi t of its creditors, or (ii) TWO OPTIONS restructure the aff airs of the corporation. ARE GENERALLY AVAILABLE: (I) Although several diff erent legislative regimes LIQUIDATE THE are available to eff ect either a liquidation CORPORATION’S or a restructuring of a corporation, the ASSETS FOR THE Bankruptcy and Insolvency Act (BIA) and BENEFIT OF ITS the Companies’ Creditors Arrangement Act CREDITORS, OR (II) (CCAA) are the two most common federal RESTRUCTURE THE statutes employed for these purposes. AFFAIRS OF THE The BIA provides for both restructurings CORPORATION. (via BIA proposals) and liquidations (via bankruptcies) of insolvent businesses, while the CCAA is used primarily for the restructuring of more complex corporate businesses, although it can also be used to conduct a sale or liquidation. Bankruptcy and Insolvency Act (BIA) Bankruptcy AND RESTRUCTURING BANKRUPTCY The term “bankruptcy” refers to a formal procedure under the BIA to eff ect the liquidation of a debtor’s assets by a trustee in bankruptcy. A bankruptcy can either be voluntary or involuntary and can be brought in respect of any insolvent person that has an offi ce, assets or carries on business in Canada, with the exception of banks, insurance companies, trust or loan companies, and railway companies (for which other insolvency legislation exists). -
Virgin Atlantic
Virgin Atlantic Cryptocurrencies: Provisional Lottie Pyper considers the 2020 and beyond Liquidation and guidance given on the first Robert Amey, with Restructuring: Jonathon Milne of The Cayman Islands restructuring plan under Conyers, Cayman, and Hong Kong Part 26A of the Companies on recent case law Michael Popkin of and developments Campbells, takes a Act 2006 in relation to cross-border view cryptocurrencies A regular review of news, cases and www.southsquare.com articles from South Square barristers ‘The set is highly regarded internationally, with barristers regularly appearing in courts Company/ Insolvency Set around the world.’ of the Year 2017, 2018, 2019 & 2020 CHAMBERS UK CHAMBERS BAR AWARDS +44 (0)20 7696 9900 | [email protected] | www.southsquare.com Contents 3 06 14 20 Virgin Atlantic Cryptocurrencies: 2020 and beyond Provisional Liquidation and Lottie Pyper considers the guidance Robert Amey, with Jonathon Milne of Restructuring: The Cayman Islands given on the first restructuring plan Conyers, Cayman, on recent case law and Hong Kong under Part 26A of the Companies and developments arising from this Michael Popkin of Campbells, Act 2006 asset class Hong Kong, takes a cross-border view in these two off-shore jurisdictions ARTICLES REGULARS The Case for Further Reform 28 Euroland 78 From the Editors 04 to Strengthen Business Rescue A regular view from the News in Brief 96 in the UK and Australia: continent provided by Associate South Square Challenge 102 A comparative approach Member Professor Christoph Felicity -
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. -
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. -
1/1 DIRECTOR and OFFICER LIABILITY in the ZONE of INSOLVENCY: a COMPARATIVE ANALYSIS HH Rajak Summary It Is the Duty of the Dire
HH RAJAK (SUMMARY) PER/PELJ 2008(11)1 DIRECTOR AND OFFICER LIABILITY IN THE ZONE OF INSOLVENCY: A COMPARATIVE ANALYSIS HH Rajak* Summary It is the duty of the directors of a company to run the business of the company in the best interests of the company and its shareholders. In principle, the company, alone, is responsible for the debts incurred in the running of the company and the creditors are, in principle, precluded from looking to the directors or shareholders for payment of any shortfall arising as a result of the company's insolvency. This principle has, in a number of jurisdictions undergone statutory change such that in certain circumstances, the directors and others who were concerned with the management of the company may be made liable to contribute, personally, to meet the payment – in part or entirely – of the company's debts. This paper aims to explore this statutory jurisdiction. It also seeks to describe succinctly the process by which the shift from unlimited to limited liability trading was achieved. It will end by examining briefly a comparatively new phenomenon, namely that of a shift in the focus of the directors' duties from company and shareholders to the creditors as the company becomes insolvent and nears the stage of a formal declaration of its insolvent status – the so-called 'zone of insolvency'. * Prof Harry Rajak. Professor Emeritus, Sussex Law School, University of Sussex. 1/1 DIRECTOR AND OFFICER LIABILITY IN THE ZONE OF INSOLVENCY: A COMPARATIVE ANALYSIS ISSN 1727-3781 2008 VOLUME 11 NO 1 HH RAJAK PER/PELJ 2008(11)1 DIRECTOR AND OFFICER LIABILITY IN THE ZONE OF INSOLVENCY: A COMPARATIVE ANALYSIS HH Rajak* 1 Introduction It is a generally accepted proposition that the duty of the directors of a company is to run the business of the company in the best interests of the company. -
Dictionary of Insolvency Terms in EU Member States DICTIONARY of INSOLVENCY TERMS in EU MEMBER STATES
Dictionary of Insolvency Terms in EU Member States DICTIONARY OF INSOLVENCY TERMS IN EU MEMBER STATES Contents Introduction......................................................................3 Lithuania.........................................................................97 Austria...............................................................................4 Luxembourg..................................................................104 Belgium..............................................................................9 Malta..............................................................................111 Bulgaria...........................................................................14 Netherlands..................................................................120 Croatia.............................................................................19 Poland............................................................................125 Cyprus..............................................................................26 Portugal.........................................................................135 Czech Republic................................................................33 Romania........................................................................141 Denmark..........................................................................38 Slovakia.........................................................................147 Estonia.............................................................................42 Slovenia.........................................................................152 -
Alex Kershaw
The 75th Anniversary of the WWII Italian Campaign • 1943 - 2018 The Liberator Malta, Sicily & Italy Aboard the Legendary Sea Cloud II OCTOBER 19 – 28, 2018 Extend your journey with our three-night post-tour in Rome & Florence Book early and save up to $2,000 per couple See page 43 for details. FEATURING AUTHOR & HISTORIAN ALEX KERSHAW Follow in the footsteps of US Army officer Felix Sparks, subject of Alex Kershaw’s best-selling book The Liberator, while seeing the best of Italy and visiting all of the key sites in the Italian campaign with the world's foremost experts in WWII history. Dear friend of the Museum and fellow traveler, t is my great delight to invite you to travel with me and my esteemed colleagues from The National WWII Museum on an epic voyage of liberation and wonder – Ifrom the ancient harbor of Valetta, Malta, to the shores of Italy, and all the way to the gates of Rome. I have written about many extraordinary warriors but none who gave more than Felix Sparks of the 45th “Thunderbird” Infantry Division. He experienced the full horrors of the key battles in Italy–a land of “mountains, mules, and mud,” but also of unforgettable beauty. Sparks fought from the very first day that Americans landed in Europe on July 10, 1943, to the end of the war. He earned promotions first as commander of an infantry company and then an entire battalion through Italy, France, and Germany, to the hell of Dachau. His was a truly awesome odyssey: from the beaches of Sicily to the ancient ruins at Paestum near Salerno; along the jagged, mountainous spine of Italy to the Liri Valley, overlooked by the Abbey of Monte Cassino; to the caves of Anzio where he lost his entire company in what his German foes believed was the most savage combat of the war–worse even than Stalingrad. -
Directors' Duties and Liabilities in Financial Distress During Covid-19
Directors’ duties and liabilities in financial distress during Covid-19 July 2020 allenovery.com Directors’ duties and liabilities in financial distress during Covid-19 A global perspective Uncertain times give rise to many questions Many directors are uncertain about their responsibilities and the liability risks The Covid-19 pandemic and the ensuing economic in these circumstances. They are facing questions such as: crisis has a significant impact, both financial and – If the company has limited financial means, is it allowed to pay critical suppliers and otherwise, on companies around the world. leave other creditors as yet unpaid? Are there personal liability risks for ‘creditor stretching’? – Can you enter into new contracts if it is increasingly uncertain that the company Boards are struggling to ensure survival in the will be able to meet its obligations? short term and preserve cash, whilst planning – Can directors be held liable as ‘shadow directors’ by influencing the policy of subsidiaries for the future, in a world full of uncertainties. in other jurisdictions? – What is the ‘tipping point’ where the board must let creditor interest take precedence over creating and preserving shareholder value? – What happens to intragroup receivables subordinated in the face of financial difficulties? – At what stage must the board consult its shareholders in case of financial distress and does it have a duty to file for insolvency protection? – Do special laws apply in the face of Covid-19 that suspend, mitigate or, to the contrary, aggravate directors’ duties and liability risks? 2 Directors’ duties and liabilities in financial distress during Covid-19 | July 2020 allenovery.com There are more jurisdictions involved than you think Guidance to navigating these risks Most directors are generally aware of their duties under the governing laws of the country We have put together an overview of the main issues facing directors in financially uncertain from which the company is run.