Principles of Universalism
Total Page:16
File Type:pdf, Size:1020Kb
Load more
Recommended publications
-
CVA" Stands for a Number of Things, Including "Cerebro
COMPANY VOLUNTARY ARRANGEMENTS Michael Howlin, Q.C. Hastie Stable, Edinburgh 1. Introduction 1.1 The abbreviation "CVA" stands for a number of things, including "cerebro- vascular accident" (i.e., a stroke), "Creative Video Associations" (a company which recycles videotape), an organisation called "Croydon Voluntary Action", "credit value adjustment" (or indeed "counterparty valuation adjustment") in the context of banking, and a device known as a "controlled valve actuator". It also stands for "company voluntary arrangement", which is the subject-matter of this talk. 1.2 Recent high-profile examples of CVAs include those proposed by (the late) JJB Sports (for the second time), Blacks, Clinton Cards, PT McWilliams (a Northern Ireland engineering company), Oddbins (no explanation needed), Carvill Group (a Northern Ireland construction company) and McTavish 2 Ramsay, the Dundee door manufacturers. Even more recently, we have had the failed Glasgow Rangers CVA and CVAs for Travelodge and Fitness First. 2. The General Statutory Background 2.1 CVAs were created by the Insolvency Act 1986, which devoted all of seven sections to them. Since 2003, they have been governed by slightly expanded primary statutory provisions1 and a new Schedule (Schedule A1) to which I shall return shortly. There are also provisions in Part I of the Insolvency (Scotland) Rules 1986, as amended. 2.2 Section 1(1) defines a voluntary arrangement simply as "a composition in satisfaction of [the company's] debts or a scheme of arrangement of its affairs2". In practice, a CVA is a very flexible affair, the details of which will vary from case to case. Examples of what can be achieved by a CVA include: (1) unconditional foregiveness of debts, or certain classes of debts; (2) pro rata reduction (or partial reduction) of liabilities, or certain classes of liabilities; (3) other variations of liabilities (e.g. -
What a Creditor Needs to Know About Liquidating an Insolvent BVI Company
What a creditor needs to know about liquidating GUIDE an insolvent BVI company Last reviewed: October 2020 Contents Introduction 3 When is a company insolvent? 3 What is a statutory demand? 3 Written request for payment 3 Is it essential to serve a statutory demand? 3 What must a statutory demand say? 3 Setting aside a statutory demand 4 How may a company be put into liquidation? 4 Qualifying resolution 4 Appointment 4 Liquidator's powers 4 Court order 5 Who may apply? 5 Application 5 Debt should be undisputed 5 When does a company's liquidation start? 5 What are the consequences of a company being put into liquidation? 5 Assets do not vest in liquidator 5 Automatic consequences 5 Restriction on execution and attachment 6 Public documents 6 Other consequences 6 Effect on contracts 6 How do creditors claim in a company's liquidation? 7 Making a claim 7 Currency 7 Contingent debts 7 Interest 7 Admitting or rejecting claims 7 What is a creditors' committee? 7 Establishing the committee 7 2021934/79051506/1 BVI | CAYMAN ISLANDS | GUERNSEY | HONG KONG | JERSEY | LONDON mourant.com Functions 7 Powers 8 What is the order of distribution of the company's assets? 8 Pari passu principle 8 Excluded assets 8 Order of application 8 How are secured creditors affected by a company's liquidation? 8 General position 8 Liquidator challenge 8 Claiming in the liquidation 8 Who are preferential creditors? 9 Preferential creditors 9 Priority 9 What are the claims of current and past shareholders? 9 Do shareholders have to contribute towards the company's debts? -
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. -
The Recognition and Enforcement of Foreign Insolvency Derived Judgments - Rubin
INSOL International The recognition and enforcement of foreign insolvency derived judgments - Rubin Gordon Stewart Immediate Past President, INSOL International Allen & Overy LLP Setting the scene - strands of English cross-border insolvency law COMMON LAW PRINCIPLES OF INSOLVENCY ASSISTANCE CROSS-BORDER INSOLVENCY REGULATIONS 2006 (UNCITRAL MODEL LAW) SECTION 426 COUNTRIES FOREIGN JUDGMENTS ADMINISTRATION OF (RECIPROCAL JUSTICE ACT 1920 ENFORCEMENT) ACT 1933 EU LEGISLATION DIRECTIVE DIRECTIVE EC 2001/24/EC – 2001/17/EC – INSOLVENCY WINDING UP WINDING UP REGULATION - DIRECTIVE FOR DIRECTIVE INDIVIDUALS CREDIT FOR & COMPANIES INSTITUTIONS INSURERS 2 Setting the scene – Cambridge Gas • Isle of Man company’s shareholders dispossessed of shares under chapter 11 plan – plan recognised in Isle of Man (Privy Council) • Shares asset of Cayman parent who was not subject to US chapter 11 and had not submitted to the US jurisdiction • Traditional “litigation” rules for the recognition and enforcement of judgments did not apply – insolvency concerns the enforcement of collective rights • Principle of modified universalism – “the domestic court must at least be able to provide assistance by doing whatever it could have done in the case of a domestic insolvency.” • The idea of a single insolvency having universal effect • The golden thread of common law principles of insolvency assistance since 18th century 3 Setting the scene - litigation common law Dicey & Morris Rule 43: English court will allow enforcement of foreign monetary judgment in personam if the defendant: 1) was present in the foreign country when the foreign proceedings were instituted; or 2) was a claimant or counterclaimed in the foreign proceedings; or 3) submitted to the foreign jurisdiction; or 4) agreed, in respect of the subject matter of the proceedings, to submit to the jurisdiction of that court or courts of the country. -
European and Best Practice Bank Resolution Mechanisms
70152 Public Disclosure Authorized Public Disclosure Authorized EUROPEAN AND BEST PRACTICE BANK RESOLUTION MECHANISMS AN ASSESSMENT AND RECOMMENDATIONS FOR POLICY AND LEGAL REFORMS Public Disclosure Authorized OVERVIEW REPORT Private & Financial Sector Development Department Public Disclosure Authorized Central Europe and the Baltics Country Department Europe and Central Asia Region The World Bank March 30, 2012 TABLE OF CONTENTS EXECUTIVE SUMMARY 3 SECTION I: BACKGROUND 8 SECTION II: BANK RESOLUTION – KEY PRINCIPLES 10 SECTION III: THE FUTURE EU RESOLUTION FRAMEWORK 13 Intervention Triggers 15 Resolution Tools 16 Resolution Powers 18 Funding of Resolution 18 The Cross-Border Dimension 19 RECOMMENDATIONS REGARDING THE EC PROPOSALS 20 SECTION IV: FINANCIAL MECHANISMS AND INSTRUMENTS FOR RESOLUTION 27 Mechanisms and Instruments for Implementing the Resolution Process 27 Categorization and Ranking of Bank Liabilities by Creditor 29 SECTION V: ANALYSIS OF SELECTED COUNTRIES’ RESOLUTION REGIMES 33 POLAND 33 CZECH REPUBLIC 38 GERMANY 42 SPAIN 45 UNITED KINGDOM 52 CROATIA 57 CANADA 61 UNITED STATES 66 SECTION VI: OBSERVATIONS BASED ON REVIEWS OF EU COUNTRIES’ LAWS 68 Importance of the Resolution Regime 68 Observations on Country Frameworks 71 Key Legal Provisions for Credit Institution Resolution 73 Criteria for Supervisory Intervention 73 The Objective of a Proceeding 74 The Governmental Authority Responsible for a Proceeding 75 The Powers of the Administrator of a Resolution Proceeding 75 The Mechanisms that could be used to Resolve an Institution 76 The Effect on Corporate Governance of the Affected Institution 77 CONCLUSIONS 79 This report on European Bank Resolution Mechanisms and proposals for reform, was jointly written by a team comprising John Pollner (Lead Financial Officer, ECSPF, World Bank), Henry N. -
Contracting out of Secondary Insolvency Proceedings: the Main Liquidator's Undertaking in the Meaning of Article 18 In
Brooklyn Journal of Corporate, Financial & Commercial Law Volume 9 | Issue 1 Article 12 2014 Contracting Out of Secondary Insolvency Proceedings: The ainM Liquidator's Undertaking in the Meaning of Article 18 in the Proposal to Amend the EU Insolvency Regulation Bob Wessels Follow this and additional works at: https://brooklynworks.brooklaw.edu/bjcfcl Recommended Citation Bob Wessels, Contracting Out of Secondary Insolvency Proceedings: The Main Liquidator's Undertaking in the Meaning of Article 18 in the Proposal to Amend the EU Insolvency Regulation, 9 Brook. J. Corp. Fin. & Com. L. (2014). Available at: https://brooklynworks.brooklaw.edu/bjcfcl/vol9/iss1/12 This Article is brought to you for free and open access by the Law Journals at BrooklynWorks. It has been accepted for inclusion in Brooklyn Journal of Corporate, Financial & Commercial Law by an authorized editor of BrooklynWorks. CONTRACTING OUT OF SECONDARY INSOLVENCY PROCEEDINGS: THE MAIN LIQUIDATOR’S UNDERTAKING IN THE MEANING OF ARTICLE 18 IN THE PROPOSAL TO AMEND THE EU INSOLVENCY REGULATION Prof. Dr. Bob Wessels* INTRODUCTIOn The European Insolvency Regulation1 aims to improve the efficiency and effectiveness of insolvency proceedings having cross-border effects within the European Union. For that purpose, the Insolvency Regulation lays down rules on jurisdiction common to all member states of the European Union (Member States), rules to facilitate recognition of insolvency judgments, and rules regarding the applicable law. The model of the Regulation will be known. It allows for one main proceeding, opened in one Member State, with the possibility of opening secondary proceedings in other EU Member States. The procedural model can only be successful if these proceedings are coordinated: Main insolvency proceedings and secondary proceedings can…contribute to the effective realization of the total assets only if all the concurrent proceedings pending are coordinated. -
1 Modified Universalisms & the Role of Local Legal Culture in the Making of Cross-Border Insolvency Law Adrian Walters*
MODIFIED UNIVERSALISMS & THE ROLE OF LOCAL LEGAL CULTURE IN THE MAKING OF CROSS-BORDER INSOLVENCY LAW ADRIAN WALTERS* Cross-border insolvency law scholars have devoted much attention to theoretical questions of international system design. There is a general consensus in the literature that the ideal system would be a universalist system in which cross-border insolvencies would be administered in a single forum under a single governing law But scholars have paid less systematic attention to how a universalist system can be implemented in the real world by institutional actors such as legislatures and judges. This article seeks to redress the balance by discussing the reception of the UNCITRAL Model Law on Cross-Border Insolvency in the United States and the United Kingdom and exploring the role that judges play in harmonizing cross-border insolvency law. As the Model Law is choice-of-law neutral, domestic enactments typically contain no express choice-of-law rules. Universalists urge judges to take their cue from modified universalism and interpret Model Law enactments in a manner that approximates to universalism’s ideal “one court, one law” approach. But comparative analysis of Anglo- American judicial practice reveals that the contours of modified universalism are contested. “Modified universalism” as it is understood in the United States implies that judges should presumptively defer to the law of the foreign insolvency proceeding (lex concursus). American universalists tend therefore to favor a strong, centralizing version of modified universalism. By contrast, British modified universalism has a forum law (lex fori) choice-of-law orientation. British modified universalism supports effective coordination of insolvency proceedings with one court having a primary coordinating role. -
Beyond Carve-Outs and Toward Reliance: a Normative Framework for Cross-Border Insolvency Choice of Law John A
University of Michigan Law School University of Michigan Law School Scholarship Repository Articles Faculty Scholarship 2014 Beyond Carve-Outs and Toward Reliance: A Normative Framework for Cross-Border Insolvency Choice of Law John A. E. Pottow University of Michigan Law School, [email protected] Available at: https://repository.law.umich.edu/articles/1513 Follow this and additional works at: https://repository.law.umich.edu/articles Part of the Bankruptcy Law Commons, Conflict of Laws Commons, and the European Law Commons Recommended Citation Pottow, John A. E. "Beyond Carve-Outs and Toward Reliance: A Normative Framework for Cross-Border Insolvency Choice of Law." Brook. J. Corp. Fin. & Com. L. 9, no. 1 (2014): 197-220. This Article is brought to you for free and open access by the Faculty Scholarship at University of Michigan Law School Scholarship Repository. It has been accepted for inclusion in Articles by an authorized administrator of University of Michigan Law School Scholarship Repository. For more information, please contact [email protected]. BEYOND CARVE-OUTS AND TOWARD RELIANCE: A NORMATIVE FRAMEWORK FOR CROSS-BORDER INSOLVENCY CHOICE OF LAW John A. E. Pottow • The title of this Article purports to develop a normative framework for cross-border insolvency choice of law. That can be a task of varying scope, so at the outset any pretense of ambition for a wholly new choice of law model should be dispelled. Indeed, at the most generalized level, bankruptcy choice of law theory has already been fully ventilated in the well-rehearsed universalism versus territorialism debates. 1 And it has been settled. -
Guide to the Company Voluntary Arrangement Process
Guide to the Company Voluntary Arrangement Process Moorfields Corporate Restructuring & Insolvency What is a Company Voluntary Arrangement (“CVA”) ? A Company Voluntary Arrangement (“CVA”) is a legally binding agreement between a company and its creditors. Such an agreement proposes that all or part of the debt owed to the company’s creditors be paid out of future profits or from a controlled disposal of com- pany assets. The primary objective of such a process is to preserve viable businesses whilst ensuring that creditors receive a higher return than they would do in the alter- native processes such as liquidation or Administration. During the CVA process, the existing management and directors remain in control of the company. One or more qualified Insolvency Practitioners (“IP”) are appointed by the company to report to creditors on the proposal, as ‘Nominee’, and to monitor the progress of the arrangement as ‘Supervisor” (once approved). The IP must retain independence from the directors and company and owes a duty to the creditors generally as well as the company proposing the CVA. The process is set out in the Insolvency Act 1986 (“IA86”) together with associated legislation and only persons qualified to act as Insolvency Practitioners may act as the ‘Nominee’ or ‘Supervisor’. When can a CVA be proposed? It is paramount that the interests of creditors are consid- ered at all times and if a CVA is not considered to be in their Insolvent companies that wish to avoid liquidation or Ad- interests then a CVA will not be appropriate. ministration may be able to use the CVA process. -
Hong Kong SAR Cross-Border Insolvency Landscape Evolves For
CORPORATE Hong Kong SAR cross-border insolvency landscape evolves for Chinese corporates Naomi Moore, Daniel Cohen and Jeremy Haywood of Akin Gump explain the implications of recent Hong Kong SAR court rulings on cross-border insolvency cases concerning HKEX-listed mainland Chinese corporate groups he Hong Kong Companies Court has made a number of rulings concerning mainland Chinese corporate groups listed in Hong Kong SAR which illustrate the evolving landscape of cross-border insolvency law. These cases may, in Tsome instances, cause creditors and debtors to re-evaluate some of the enforcement and defensive strategies traditionally used in the insolvencies of such companies. The Hong Kong Companies Court has made a number of rulings concerning mainland Chinese corporate groups listed in Hong Kong SAR which illustrate the evolving landscape of cross-border insolvency law. These cases may, in some instances, cause creditors and debtors to re-evaluate some of the enforcement and defensive strategies traditionally used in the insolvencies of such companies. Hong Kong SAR has long been an international finance centre and investment gateway for mainland China. Not surprisingly, there are a significant number of mainland Chinese corporate groups listed on the Stock Exchange of Hong Kong (HKEX). As of December 31, 2020, there were 1,319 mainland enterprises listed on the HKEX, comprising 52% of the total number of listed companies and 80% of the total market capitalisation. Many of these listed companies are incorporated in offshore jurisdictions such as the Cayman Islands, the British Virgin Islands or Bermuda and have issued substantial amounts of foreign law governed debt (often New York law governed bonds). -
Insurer Receivership Model Act
NAIC Model Laws, Regulations, Guidelines and Other Resources—October 2007 INSURER RECEIVERSHIP MODEL ACT Table of Contents ARTICLE I. GENERAL PROVISIONS Section 101. Construction and Purpose Section 102. Conflicts of Law Section 103. Persons Covered Section 104. Definitions Section 105. Jurisdiction and Venue Section 106. Exemption from Fees Section 107. Notice and Hearing on Matters Submitted by the Receiver for Receivership Court Approval Section 108. Injunctions and Orders Section 109. Statutes of Limitations Section 110. Cooperation of Officers, Owners and Employees Section 111. Delinquency Proceedings Commenced Prior to Enactment Section 112. Actions By and Against the Receiver Section 113. Unrecorded Obligations and Defenses Of Affiliates Section 114. Executory Contracts Section 115. Immunity and Indemnification of the Receiver and Assistants Section 116. Approval and Payment of Expenses Section 117. Financial Reporting Section 118. Records ARTICLE II. PROCEEDINGS Section 201. Receivership Court’s Seizure Order Section 202. Commencement of Formal Delinquency Proceeding Section 203. Return of Summons and Summary Hearing Section 204. Proceedings for Expedited Trial: Continuances, Discovery, Evidence Section 205. Decision and Appeals Section 206. Confidentiality Section 207. Grounds for Conservation, Rehabilitation or Liquidation Section 208. Entry of Order Section 209. Effect of Order of Conservation, Rehabilitation or Liquidation ARTICLE III. CONSERVATION Section 301. Conservation Orders Section 302. Powers and Duties of the Conservator Section 303. Coordination With Guaranty Associations and Orderly Transition to Rehabilitation or Liquidation ARTICLE IV. REHABILITATION Section 401. Rehabilitation Orders Section 402. Powers and Duties of the Rehabilitator Section 403. Filing of Rehabilitation Plans Section 404. Termination of Rehabilitation Section 405. Coordination with Guaranty Associations and Orderly Transition to Liquidation ARTICLE V.