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Restructuring and Insolvency in the Dubai International Financial Centre Bryant B Pratt’s Journal of BankruPtcy law Volume 6 Number 3 April/mAy 2010 Headnote: dubai Steven A. meyerowitz 193 RestRuctuRing and insolvency in tHe dubai inteRnational Financial centRe bryant b. edwards, Timothy N. ross, and Christian Adams 195 new ligHt sHed on impoRtant pReFeRence deFense issue in delawaRe: must new value Remain unpaid? J. Gregg miller 210 tHe yeaR in bankRuptcy 2009: paRt 2 mark G. Douglas 215 sHelteR FRom tHe stoRm: Recent decisions FRom tHe tHiRd ciRcuit and soutHeRn distRict oF new yoRk conFiRm tHe bReadtH oF bankRuptcy code section 546(e)’s saFe HaRboR FoR tRansactions involving tHe puRcHase oR sale oF secuRities philip D. Anker and benjamin W. loveland 259 Recent decisions in Saad, Metcalfe, and condor: cHapteR 15 Re-eneRgized mitchel Appelbaum, George W. Shuster, Jr., and melanie J. Dritz 267 How does losing tHe absolute RigHt to cRedit bid in a sale undeR a plan oF ReoRganization impact lendeRs and boRRoweRs? Carolyn p. richter and Sabrina G. Fitze 274 u.s. supReme couRt upHolds discHaRge oF student loan debt richard l. Fried and Stephen m. Schauder 284 editoR-in-cHieF Steven A. Meyerowitz President, Meyerowitz Communications Inc. boaRd oF EDITORs Scott L. Baena Mark G. Douglas William I. Kohn Bilzin Sumberg Baena Price & Jones Day Schiff Hardin LLP Axelrod LLP Timothy P. Duggan Matthew W. Levin Leslie A. Berkoff Stark & Stark Alston & Bird LLP Moritt Hock Hamroff & Horowitz LLP Gregg M. Ficks Alec P. Ostrow Coblentz, Patch, Duffy & Bass Stevens & Lee P.C. Andrew P. Brozman LLP Clifford Chance US LLP Deryck A. Palmer Mark J. Friedman Cadwalader, Wickersham & Kevin H. Buraks DLA Piper Rudnick Gray Cary Taft LLP Portnoff Law Associates, Ltd. US LLP N. Theodore Zink, Jr. Peter S. Clark II Robin E. Keller Chadbourne & Parke LLP Reed Smith LLP Lovells Thomas W. Coffey Tucker Ellis & West LLP Pratt’s Journal of BankruPtcy law is published eight times a year by a.s. Pratt & sons, 805 fif- teenth street, nw., third floor, washington, Dc 20005-2207, copyright © 2010 alEX esolutIons, Inc. all rights reserved. no part of this journal may be reproduced in any form — by microfilm, xerography, or otherwise — or incorporated into any information retrieval system without the written permission of the copyright owner. requests to reproduce material contained in this publication should be addressed to a.s. Pratt & sons, 805 fif- teenth street, nw., third floor, washington, Dc 20005-2207, fax: 703-528-1736. for permission to photocopy or use material electronically from Pratt’s Journal of Bankruptcy Law, please access www.copyright.com or contact the copyright clearance center, Inc. (ccc), 222 rosewood Drive, Danvers, Ma 01923, 978-750-8400. ccc is a not-for-profit organization that provides licenses and registration for a variety of users. for subscrip- tion information and customer service, call 1-800-572-2797. Direct any editorial inquires and send any material for publication to steven a. Meyerowitz, Editor-in-chief, Meyerowitz communications Inc., 10 crinkle court, northport, ny 11768, [email protected], 631-261-9476 (phone), 631-261-3847 (fax). Material for pub- lication is welcomed — articles, decisions, or other items of interest to bankers, officers of financial institutions, and their attorneys. this publication is designed to be accurate and authoritative, but neither the publisher nor the authors are rendering legal, accounting, or other professional services in this publication. If legal or other expert advice is desired, retain the services of an appropriate professional. the articles and columns reflect only the pres- ent considerations and views of the authors and do not necessarily reflect those of the firms or organizations with which they are affiliated, any of the former or present clients of the authors or their firms or organizations, or the editors or publisher. PostMastEr: send address changes to Pratt’s Journal of Bankruptcy Law, a.s. Pratt & sons, 805 fifteenth street, nw., third floor, washington, Dc 20005-2207. ISSN 1931-6992 restructuring and Insolvency in the Dubai International financial centre bryANT b. EdwarDS, TimoThy N. roSS, AND ChriSTiAN ADAmS The Dubai International Financial Centre (the “DIFC”) is a federal financial free zone which has been granted authority to self-legislate in civil and commercial areas. An amendment to the UAE Constitution and a resulting federal law concerning finan- cial free zones have allowed the government of Dubai to create a legal framework based on best practices of leading jurisdictions in Europe, North America and the Far East. The laws of the DIFC (“DIFC Law”) are enacted by His Highness Sheikh Mohammed bin Rashid Al Maktoum, Vice-President and Prime Minister of the UAE and Ruler of Dubai, and under the UAE Constitution, are considered at the level of local legislation. DIFC Law provides a framework for the reorganization and liquidation of insolvent companies. The DIFC regime remains largely untested as there has yet to be a major corporate insolvency within the jurisdiction. This article provides an overview of the legal framework within the DIFC, the various insolvency procedures contained therein, and the key issues to be considered by company directors in an insolvency or potential insolvency scenario. he DIfc Insolvency law (DIfc law no.7 of 2004) (the “Insol- vency law”) sets out the procedures that result in the reorganiza- ttion or liquidation of an insolvent company. the Insolvency law provides for company voluntary arrangements, company receivership and both voluntary and involuntary winding-up procedures. 195 published in the April/may 2010 issue of Pratt’s Journal of Bankruptcy Law. Copyright 2010 AleXeSoluTioNS, iNC. 1-800-572-2797. pratt’S JourNAl oF bANkrupTCy Law The Insolvency law is supported by the DIfc Insolvency regulations (the “regulations”) and article 14 of the DIfc code (the “code”). the regulations are enacted pursuant to article 116 of the DIfc companies law (DIfc law no (3) of 2006, the “companies law”) and article 93 of the Insolvency law. the code was enacted for the purposes of consoli- dating, standardizing and harmonizing the laws applicable in the DIfc. consolidation under the code has not resulted in the amendment of any substantive provision of the Insolvency law or the regulations. the code merely seeks to make the Insolvency law easier to read and reference. to the extent that any conflict or inconsistency exists between the code and the Insolvency law, the terms of the code shall prevail. The DIfc published a draft update of the Insolvency law and regu- lations for consultation purposes in november 2008. the consultation period ended on 13 December 2008 and we understand that, subject to the ruler’s approval, the revised Insolvency law and regulations will be en- acted shortly. the updated Insolvency law and regulations, if enacted in the form published for consultation purposes, would not materially change the analysis of the DIfc restructuring and insolvency regime as set out in this article. The Insolvency law is applicable to any company under the jurisdic- tion of the DIfc and incorporated under the companies law (a “com- pany”). In addition, Part 6 of the Insolvency law contains provisions dealing with “recognized” and “foreign” companies. where a foreign company (being a company incorporated in any jurisdiction other than the DIfc) is the subject of insolvency proceedings in its jurisdiction of incorporation, the DIfc court (the “court”) shall, upon request from the court of that jurisdiction, assist the foreign court in the gathering and remitting of as- sets maintained within the DIfc. a recognized company (being a foreign company which is registered to carry on business in the DIfc) may be bryant edwards is Office managing partner of latham & Watkins’ middle east offices. Timothy ross is a finance partner located in the firm’s Dubai office. Chris- tian Adams is an associate in the firm’s Dubai office. The authors can be reached at [email protected], [email protected], and [email protected]. 196 reSTruCTuriNG AND iNSolVeNCy iN DubAi wound up in circumstances where it has been dissolved, deregistered or otherwise ceased to exist in its jurisdiction of incorporation. To the extent that there are any gaps in the Insolvency law, it seems likely that the DIfc court would consider foreign law when interpreting provisions of the Insolvency law. DIfc law (that is to say all of the laws in force in the DIfc rather than just the Insolvency law) specifically pro- vides for a hierarchy of applicable law for any civil or commercial matter as follows: • the laws in force in the DIfc; • the laws of any jurisdiction other than that of the DIfc expressly cho- sen by any DIfc law; • the laws of any jurisdiction as agreed between the contracting parties; • the laws of the jurisdiction that appears to the court or the arbitrator to be the one most closely related to the facts and the persons concerned in the matter; and • the laws of England and wales. insolvency ProceduRes company voluntary arrangements commencement Directors of a company may make a proposal to its members and its creditors for a scheme of arrangement of its affairs (a “Voluntary arrange- ment”). In such circumstances, the directors will appoint a DIfc regis- tered insolvency practitioner as “nominee” to act in relation to the Volun- tary arrangement and supervise its implementation. the directors must provide the nominee with a proposal that must include information on a wide-range of matters including: assets that will be included in the Volun- tary arrangement; any security provided by the company; the manner in which it is proposed to deal with liabilities; creditors (preferential, secured and unsecured); and whether the directors are aware of any transactions which would be classified as preferences, transactions at an undervalue or 197 pratt’S JourNAl oF bANkrupTCy Law invalid security interests if the company were to go into liquidation.
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