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Corporate Recovery & Insolvency 2017 ICLG The International Comparative Legal Guide to: Corporate Recovery & Insolvency 2017 11th Edition A practical cross-border insight into corporate recovery and insolvency work Published by Global Legal Group, in association with INSOL International, with contributions from: Ali Budiardjo, Nugroho, Reksodiputro Lenz & Staehelin Barun Law LLC McCann FitzGerald BlackOak LLC McDermott Will & Emery UK LLP BonelliErede Nishimura & Asahi Bredin Prat Paul, Weiss, Rifkind, Wharton & Garrison LLP Campbells Pekin & Pekin De Brauw Blackstone Westbroek N.V. Pinheiro Neto Advogados Dhir & Dhir Associates Schindler Attorneys Gall Sedgwick Chudleigh Ltd. Gilbert + Tobin Slaughter and May Gorrissen Federspiel SOG / Samardžić, Oreški & Grbović Hannes Snellman Attorneys Ltd Soteris Flourentzos & Associates LLC Hengeler Mueller Partnerschaft von Sullivan & Cromwell LLP Rechtsanwälten mbB Thornton Grout Finnigan LLP INFRALEX Knowles Husain Lindsay Inc Kubas Kos Gałkowski Kvale Advokatfirma DA The International Comparative Legal Guide to: Corporate Recovery & Insolvency 2017 Editorial Chapter: 1 INSOL International – An Overview – Adam Harris, INSOL International 1 General Chapters: 2 The EU Harmonisation Agenda and the Draft Harmonisation Directive – Tom Vickers & Nicky Ellis, Slaughter and May 4 Contributing Editor Tom Vickers, Partner, 3 Liability Management as a Restructuring Tool – Chris Beatty & Vanessa Blackmore, Slaughter and May Sullivan & Cromwell LLP 7 Sales Director 4 Cross-Border Insolvency Laws Relating to Security: a UK Perspective Ahead of Brexit – Florjan Osmani Alicia Videon & Emma Jolley, McDermott Will & Emery UK LLP 13 Account Director Oliver Smith Country Question and Answer Chapters: Sales Support Manager Paul Mochalski 5 Australia Gilbert + Tobin: Dominic Emmett & Alexandra Whitby 20 Editor 6 Austria Schindler Attorneys: Martin Abram & Florian Cvak 27 Sam Friend 7 Bermuda Sedgwick Chudleigh Ltd.: Alex Potts & Mark Chudleigh 33 Senior Editors Suzie Levy, Rachel Williams 8 Brazil Pinheiro Neto Advogados: Luiz Fernando Valente de Paiva & Chief Operating Officer André Moraes Marques 42 Dror Levy 9 Canada Thornton Grout Finnigan LLP: Leanne M. Williams & Puya J. Fesharaki 47 Group Consulting Editor Alan Falach 10 Cayman Islands Campbells: Guy Manning & Guy Cowan 54 Publisher 11 Cyprus Soteris Flourentzos & Associates LLC: Soteris Flourentzos & Evita Lambrou 61 Rory Smith 12 Denmark Gorrissen Federspiel: John Sommer Schmidt & Morten L. Hans Jakobsen 68 Published by Global Legal Group Ltd. 13 England & Wales Slaughter and May: Tom Vickers & Nicky Ellis 74 59 Tanner Street London SE1 3PL, UK 14 France Bredin Prat: Nicolas Laurent & Olivier Puech 81 Tel: +44 20 7367 0720 Fax: +44 20 7407 5255 15 Germany Hengeler Mueller Partnerschaft von Rechtsanwälten mbB: Email: [email protected] Dr. Ulrich Blech & Dr. Martin Tasma 87 URL: www.glgroup.co.uk GLG Cover Design 16 Hong Kong Gall: Nick Gall & Ashima Sood 95 F&F Studio Design 17 India Dhir & Dhir Associates: Alok Dhir & Bhuvan Arora 100 GLG Cover Image Source iStockphoto 18 Indonesia Ali Budiardjo, Nugroho, Reksodiputro: Theodoor Bakker & Herry N. Kurniawan 107 Printed by Stephens & George 19 Ireland McCann FitzGerald: Michael Murphy & Grace Armstrong 112 Print Group June 2017 20 Italy BonelliErede: Vittorio Lupoli & Lucio Guttilla 118 Copyright © 2017 21 Japan Nishimura & Asahi: Yoshinori Ono & Hiroshi Mori 126 Global Legal Group Ltd. All rights reserved 22 Korea Barun Law LLC: Thomas P. Pinansky & Joo Hyoung Jang 133 No photocopying 23 Netherlands De Brauw Blackstone Westbroek N.V.: Reinout Vriesendorp & ISBN 978-1-911367-58-1 Ferdinand Hengst 140 ISSN 1754-0097 24 Norway Kvale Advokatfirma DA: Stine D. Snertingdalen & Ingrid E. S. Tronshaug 145 Strategic Partners 25 Poland Kubas Kos Gałkowski: Dominik Gałkowski & Konrad Trzaskowski 151 26 Russia INFRALEX: Artem Kukin & Stanislav Petrov 157 27 Serbia SOG / Samardžić, Oreški & Grbović: Miloš Velimirović & Nevena Milošević 163 28 Singapore BlackOak LLC: Ashok Kumar & Samuel Ng 168 29 South Africa Knowles Husain Lindsay Inc: Ian Lindsay 174 PEFC Certified 30 Sweden Hannes Snellman Attorneys Ltd: Paula Röttorp & Carolina Wahlby 179 This product is from sustainably managed forests and 31 Switzerland Lenz & Staehelin: David Ledermann & Tanja Luginbühl 185 controlled sources PEFC/16-33-254 www.pefc.org 32 Turkey Pekin & Pekin: Gökben Erdem Dirican & Umut Korkmaz 193 33 USA Paul, Weiss, Rifkind, Wharton & Garrison LLP: Alan W. Kornberg & Elizabeth R. McColm 201 Further copies of this book and others in the series can be ordered from the publisher. Please call +44 20 7367 0720 Disclaimer This publication is for general information purposes only. It does not purport to provide comprehensive full legal or other advice. Global Legal Group Ltd. and the contributors accept no responsibility for losses that may arise from reliance upon information contained in this publication. This publication is intended to give an indication of legal issues upon which you may need advice. Full legal advice should be taken from a qualified professional when dealing with specific situations. WWW.ICLG.COM Chapter 1 INSOL International – An Overview INSOL International Adam Harris I am grateful for the opportunity for INSOL International to immensely rewarding experience: “The teaching really takes contribute to this publication. This gives us a window to be able to off where the textbooks and cases end, giving you a first-hand showcase some of the activities and projects of INSOL International insight from the experts of the law and practice of cross- which will be of interest to the readers of this global publication. We border insolvency and the strategy and tactics that go into have selected a small sample of those below. The reach and scope is achieving successful cross-border insolvency proceedings and truly international, and the activities and publications featured will restructurings… I can’t imagine any other forum exists for be informative and valuable to the readers who have, or aspire to, 20 practitioners from around the world each working at the such a profile. coalface of their local restructuring and insolvency market, to get together over a number of months to discuss and debate in detail the intricacies of the international framework of insolvency law.” INSOL International Global Insolvency The World Bank Group has also endorsed the programme. Practice Course Mahesh Uttamchandani, Practice Manager for SME Access to Finance and Credit Infrastructures, Finance & Markets, comments An underlying theme of the background to the work which INSOL that “the fellowship programme will be a very rewarding undertakes is that our members are able to operate globally. As we investment towards a successful career, both through helping all know, modern business enterprises often conduct business across the development of professional skills and through fostering a multiple jurisdictions. It is generally the case that the financial greater understanding of different jurisdictions’ cultures and distress of a global business traverses borders and that it can no systems”. longer be dealt with in terms of the insolvency regime of only one One of the course leaders, Professor Ian Fletcher of University particular jurisdiction. In fact, the ever-growing number of cross- College London remarked that the programme is “designed and border insolvency cases continues to present new challenges to the taught by an international faculty of highly distinguished turnaround and insolvency professionals. Not only do they have experts… It answers a long-felt demand for a benchmark to be skilled in the provisions of their own jurisdictions, but, in qualification to identify those practitioners who are in the front addition, they need to have a thorough and extensive knowledge rank of transnational insolvency practice in today’s challenging of the multinational aspects (both legal and financial) with which a market place”. distressed entity operating across borders is faced. The INSOL International Global Insolvency Practice course (also known as the Fellowship Programme) was created pursuant INSOL International Technical Publications to an interest which was displayed by the INSOL membership for an advanced educational qualification which has a focus on INSOL International produces a number of high-quality technical international and cross-border insolvency matters. The Fellowship papers and research works every year. For an indication of what is course was designed to provide such knowledge and expertise. available, visit the INSOL International website (www.insol.org). By the way, our website is undergoing a complete revamp, as to the The course has been one of the most successful projects undertaken look and feel, the ease of navigation, and a whole new approach to by INSOL International, and the Fellows have become ambassadors the management of member services and data. The new site will go for INSOL. They are known as leaders in their field and although live later this year. they are mostly younger practitioners, they have through undertaking the course, developed a close network enabling them to leverage off Although the publications are many and varied, some of the seminal the strengths and contacts of the entire group. Further, the cross- works which have recently been produced are especially worth referral of work is one of the positive spin-offs to the Fellows. The noting. course is exclusive and enrolment on an annual basis is limited to 20 participants. The Fellows
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