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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. -
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. -
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. -
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. -
Proposals for Mitigating the Short Term Effects on Viable Businesses of Covid-19
PROPOSALS FOR MITIGATING THE SHORT TERM EFFECTS ON VIABLE BUSINESSES OF COVID-19 1 INTRODUCTION 1.1 Many will have concerns about the short term impact that Covid-19 may have on businesses that would otherwise be viable (for example as a result of short term disruptions to supply chains or temporary reduced customer demand). We have therefore set out below a number of proposals, for discussion with the Insolvency Service, as to how some of the immediate effects of Covid-19 may be mitigated. 1.2 If the short-term impact of Covid-19 is not satisfactorily countered, and viable businesses are not preserved, there will be lasting damage to the wider economy. 1.3 Given our focus as City of London lawyers, we put forward our ideas by reference to the impact on the corporate sector but we are conscious of the importance of taking complementary measures to achieve stability amongst partnerships and other unincorporated businesses if the objectives articulated below are to be achieved. 1.4 We would be happy to discuss or expand on any of the comments made in this paper, if requested. 2 PROPOSALS 2.1 The objectives behind these proposals are: (a) to give businesses a short breathing space, to address a temporary disruption in revenue and to free them from the risk of a creditor presenting a winding up petition and all the consequences that flow from that, in which to deal with any short term liquidity or trading issues that they may suffer as a result of the Covid-19 situation; (b) to provide an additional mitigating factor in relation to wrongful -
Business Law & Practice Review 2003
Centre for Business Law & Practice School of Law University of Leeds BBUUSSIINNEESSSS LLAAWW && PPRRAACCTTIICCEE RREEVVIIEEWW 22000033 -- 22000044 1 Centre for Business Law & Practice, School of Law, University of Leeds BUSINESS LAW & PRACTICE REVIEW 2003 - 2004 CONTENTS pages About the Centre 2 Introduction 3 Research Degrees and Teaching Programmes 4 - 6 General Activity 7 - 8 Research Outcomes 9 - 15 Editorial Work 16 Working Papers 17 - 66 Appendix 1 : Constitution of the Centre 66 – 67 Appendix 2 : Officers of the Centre 68 2 ABOUT THE CENTRE The Centre for Business Law and Practice is located in the School of Law at the University of Leeds and its aim is to promote the study of all areas of Business Law and Practice, understood as the legal rules which regulate any form of business activity. It seeks to promote all forms of research, including, doctrinal, theoretical (including socio-legal) and empirical research and to develop contacts with other parts of the academic world, as well as the worlds of business and legal practice in order to enhance mutual understanding and awareness. The results of its work are disseminated as widely as possible by publishing monographs, articles, reports and pamphlets as well as by holding seminars and conferences with both in-house and outside speakers. Staff members have acted as consultants to law firms, accounting bodies and the International Monetary Fund. Research has been undertaken in many areas of business law including banking, business confidentiality, corporate (general core company law as well as corporate governance and corporate finance), employment, financial institutions, foreign investment, insolvency, intellectual property, international trade, corporate crime and taxation. -
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. -
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 -
[2010] EWCA Civ
Neutral Citation Number: [2010] EWCA Civ 895 Case No: A2/2009/1942 IN THE HIGH COURT OF JUSTICE COURT OF APPEAL (CIVIL DIVISION) ON APPEAL FROM THE HIGH COURT OF JUSTICE CHANCERY DIVISION (COMPANIES COURT) MR NICHOLAS STRAUSS QC (SITTING AS A DEPUTY JUDGE OF THE CHANCERY DIVISION) Royal Courts of Justice Strand, London, WC2A 2LL Date: 30th July 2010 Before: LORD JUSTICE WARD LORD JUSTICE WILSON and MR JUSTICE HENDERSON - - - - - - - - - - - - - - - - - - - - - Between: (1) David Rubin (2) Henry Lan (Joint Receivers and Managers of The Consumers Trust) Appellants - and - (1) Eurofinance SA (2) Adrian Roman (3) Justin Roman (4) Nicholas Roman Respondents (Transcript of the Handed Down Judgment of WordWave International Limited A Merrill Communications Company 165 Fleet Street, London EC4A 2DY Tel No: 020 7404 1400, Fax No: 020 7404 1424 Official Shorthand Writers to the Court) Tom Smith (instructed by Dundas & Wilson LLP) for the appellant Marcus Staff (instructed by Brown Rudnick LLP) for the respondent Hearing dates: 27 and 28th January 2010 - - - - - - - - - - - - - - - - - - - - - Judgment As Approved by the Court Crown copyright© See: permission to appeal and a stay of execution (at bottom) Lord Justice Ward: The issues 1. As the issues have been refined in this Court, there are now essentially two questions for our determination: (1) should foreign bankruptcy proceedings, here Chapter 11 proceedings in the United States Bankruptcy Court for the Southern District of New York, including the Adversary Proceedings, be recognised as a foreign main proceeding in accordance with the UNCITRAL Model Law on Cross-Border Insolvency (“the Model Law”) as set out in schedule 1 to the Cross-Border Insolvency Regulations 2006 (“the Regulations”) and the appointment therein of the appellants, Mr David Rubin and Mr Henry Lan, as foreign representatives within the meaning of Article 2(j) of the Model Law be similarly recognised; and (2) should the judgment or parts of the judgment of the U.S. -
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. -
Summary Rescue Process”
COMPANY LAW REVIEW GROUP REPORT ADVISING ON A LEGAL STRUCTURE FOR THE RESCUE OF SMALL COMPANIES 22 OCTOBER 2020 1 | P a g e Contents Chairperson’s Letter to the Minister for Business, Enterprise and Innovation 4 1. Introduction to the Report 5 1.1. The Company Law Review Group ................................................................... 5 1.2 The Role of the CLRG ...................................................................................... 5 1.3 Policy Development........................................................................................ 5 1.4 Contact information ....................................................................................... 5 2. The Company Law Review Group Membership…………………………………………….….6 2.1 Membership of the Company Law Review Group ............................................ 6 3. The Work Programme ............................................................................................. 8 3.1 Introduction to the Work Programme ............................................................ 8 3.2 Company Law Review Group Work Programme 2018-2020 .............................. 8 3.3 Additional item to the Work Programme ........................................................ 9 3.4 Decision making process of the Company Law Review Group……………… ... ……..9 3.5 Committees of the Company Law Review Group ..... ….………………………………..…9 4. A Rescue Plan for SMEs ............................................................................................... 10 4.1 Introduction ................................................................................................ -
International Dimensions of Japanese Insolvency Law
MONETARY AND ECONOMIC STUDIES/FEBRUARY 2001 International Dimensions of Japanese Insolvency Law Raj Bhala This paper offers an introduction and overview of the international aspects of Japanese insolvency law. There are three international dimensions to Japan’s insolvency law: jurisdiction of Japanese courts; the status of foreign claimants; and recognition and enforcement of foreign proceedings. These dimensions are characterized by a distinctly territorial approach. This inward-looking way of handling insolvency cases is incongruous with developments in the comparative and international law context. It is also at odds with broader globalization trends, some of which are evident in Japan’s economic crisis. Analogies to international trade law are useful: the post-Uruguay Round dispute resolution mechanism has insights for the problem of jurisdiction; the famous national treatment principle is a basis for critiquing the status foreign claimants have in Japanese insolvency proceedings; and trade negotiations might be a model for expanding recognition and enforcement of foreign proceedings. As a corollary, the relationship between the extant insolvency regime and Japanese banks— many of which are internationally active—is explored. Problem banks are at the heart of the economic crisis. Yet, the insolvency law regime has not been applied to failed or failing banks, partly on grounds of the systemic risk that would be triggered by a stay of creditor proceedings. The reluctance to use the regime in bank cases is open to question on a number of grounds. Similarly, the failure to develop a harmonized set of international bank bankruptcy rules to avoid BCCI-type liquidation problems is addressed, and a proposal for proceeding in this direction is offered.