Cross-border: Restructuring and Insolvency

The European Data Protection Supervisor has published an opinion on the European Commission’s proposed revisions to the EU Regulation on insolvency proceedings (1346/2000/EC).

A Q&A guide to restructuring and insolvency law in the UK (England and Wales). The Q&A gives a high level overview of the most common forms of security granted over immovable and movable property; creditors' and shareholders' ranking on a company's insolvency; mechanisms to secure unpaid debts; mandatory set-off of mutual debts on insolvency; state support for distressed businesses; rescue and insolvency procedures; stakeholders' roles; liability for an insolvent company's debts; setting aside an insolvent company's pre-insolvency transactions; carrying on business during insolvency; additional finance; multinational cases; and proposals for reform. To compare answers across multiple jurisdictions, visit the Restructuring and insolvency Country Q&A tool. This Q&A is part of the PLC multi-jurisdictional guide to restructuring and insolvency law. For a full list of jurisdictional Q&As visit www.practicallaw.com/restructure-mjg.

The European Court of Justice has provided guidance on the interpretation of the EU Regulation on Insolvency Proceedings (1346/2000/EC) in relation to the opening of secondary proceedings.

The Supreme Court has held in two joined appeals that there is no special bankruptcy jurisdiction that allows the court to enforce foreign court orders made without jurisdiction, whether under the common law, the Cross-Border Insolvency Regulations 2006 (SI 2006/1030) or section 426 of the Insolvency Act 1986.

The High Court has held that a German court order that resulted in only a partial divestment of a debtor’s assets would be recognised and effective in the UK under the EU Regulation on Insolvency Proceedings (1346/2000/EC).

The High Court has set out the criteria for an “establishment” under the EU Regulation on Insolvency Proceedings (1346/2000/EC), and has held that the time for determining whether an establishment exists is when the relevant insolvency petition is first lodged.

This Law Firm Publication by Eugene F Collins focuses on key reforms and the developments around the law of personal insolvency in Ireland, inclusive of a breakdown of draft proposed insolvency legislation. The full draft Bill will be published by the end of June 2012, and aims to address the widespread insolvency issues amongst debtors, and provide for alternatives to bankruptcy.

The European Commission is consulting on the future of European Insolvency Law.

The High Court has held that its powers to grant discretionary relief to foreign insolvency officeholders should not be construed narrowly by reference to the examples of relief expressly listed in the Cross-Border Insolvency Regulations 2006 (SI 2006/1030).

The High Court has held that it can exercise its common law power to assist an administrator in a foreign administration to set aside antecedent transactions under section 423 of the Insolvency Act 1986, even where this goes beyond the territorial limits of the assistance it can provide under section 426 of the 1986 Act.

Debt-equity swaps are progressively being viewed in France as an efficient way of reducing the debt level of an excessively leveraged company. This chapter considers how debt-equity swaps can be used out of court, as well as how they can be used in insolvency proceedings. This is part of the PLC multi-jurisdictional guide to restructuring and insolvency law. For a full list of jurisdictional Q&As visit www.practicallaw.com/restructure-mjg.

The European Court of Justice has held that a company that carries on a single enterprise together with another company does not automatically share the centre of main interests of that other company, despite the mixing of the two companies’ assets.

With the introduction of new regulations in the German Insolvency Code by the Act for the Facilitation of the Reorganisation of Companies (Gesetz zur Erleichterung der Sanierung von Unternehmen (ESUG)) on 1 March 2012 a new chapter has opened in the German insolvency regime, aimed at providing more attractive and effective means to reorganise and rescue insolvent, or nearly insolvent, companies. The improvement of the creditors' influence on the proceedings, together with the extension of the rights and measures that can be taken in the proceedings and by the debtor, has substantially changed the focus of the insolvency regime. German insolvency proceedings can now be seen as a serious competitor in the international restructuring arena.

This article examines the principles that the Canadian courts will apply to determine the centre of main interest (COMI) for a debtor with operations in more than one jurisdiction. The determination is an important one, since it will effectively decide whether the relief of a stay of proceedings granted under section 48 of the Companies' Creditors Arrangement Act is automatically available, or only given at the court's discretion. This is part of the PLC multi-jurisdictional guide to restructuring and insolvency law. For a full list of jurisdictional Q&As visit www.practicallaw.com/restructure-mjg.

A Q&A guide to restructuring and insolvency law in Australia. The Q&A gives a high level overview of the most common forms of security granted over immovable and movable property; creditors' and shareholders' ranking on a company's insolvency; mechanisms to secure unpaid debts; mandatory set-off of mutual debts on insolvency; state support for distressed businesses; rescue and insolvency procedures; stakeholders' roles; liability for an insolvent company's debts; setting aside an insolvent company's pre-insolvency transactions; carrying on business during insolvency; additional finance; multinational cases; and proposals for reform. To compare answers across multiple jurisdictions, visit the Restructuring and insolvency Country Q&A tool. This Q&A is part of the PLC multi-jurisdictional guide to restructuring and insolvency law. For a full list of jurisdictional Q&As visit www.practicallaw.com/restructure-mjg.

A Q&A guide to restructuring and insolvency law in Brazil. The Q&A gives a high level overview of the most common forms of security granted over immovable and movable property; creditors' and shareholders' ranking on a company's insolvency; mechanisms to secure unpaid debts; mandatory set-off of mutual debts on insolvency; state support for distressed businesses; rescue and insolvency procedures; stakeholders' roles; liability for an insolvent company's debts; setting aside an insolvent company's pre-insolvency transactions; carrying on business during insolvency; additional finance; multinational cases; and proposals for reform. To compare answers across multiple jurisdictions, visit the Restructuring and insolvency Country Q&A tool. This Q&A is part of the PLC multi-jurisdictional guide to restructuring and insolvency law. For a full list of jurisdictional Q&As visit www.practicallaw.com/restructure-mjg.

A Q&A guide to restructuring and insolvency law in the Cayman Islands. The Q&A gives a high level overview of the most common forms of security granted over immovable and movable property; creditors' and shareholders' ranking on a company's insolvency; mechanisms to secure unpaid debts; mandatory set-off of mutual debts on insolvency; state support for distressed businesses; rescue and insolvency procedures; stakeholders' roles; liability for an insolvent company's debts; setting aside an insolvent company's pre-insolvency transactions; carrying on business during insolvency; additional finance; multinational cases; and proposals for reform. To compare answers across multiple jurisdictions, visit the Restructuring and insolvency Country Q&A tool. This Q&A is part of the PLC multi-jurisdictional guide to restructuring and insolvency law. For a full list of jurisdictional Q&As visit www.practicallaw.com/restructure-mjg.

A Q&A guide to restructuring and insolvency law in Cyprus. The Q&A gives a high level overview of the most common forms of security granted over immovable and movable property; creditors' and shareholders' ranking on a company's insolvency; mechanisms to secure unpaid debts; mandatory set-off of mutual debts on insolvency; state support for distressed businesses; rescue and insolvency procedures; stakeholders' roles; liability for an insolvent company's debts; setting aside an insolvent company's pre-insolvency transactions; carrying on business during insolvency; additional finance; multinational cases; and proposals for reform. To compare answers across multiple jurisdictions, visit the Restructuring and insolvency Country Q&A tool. This Q&A is part of the PLC multi-jurisdictional guide to restructuring and insolvency law. For a full list of jurisdictional Q&As visit www.practicallaw.com/restructure-mjg.

A Q&A guide to restructuring and insolvency law in Germany. The Q&A gives a high level overview of the most common forms of security granted over immovable and movable property; creditors' and shareholders' ranking on a company's insolvency; mechanisms to secure unpaid debts; mandatory set-off of mutual debts on insolvency; state support for distressed businesses; rescue and insolvency procedures; stakeholders' roles; liability for an insolvent company's debts; setting aside an insolvent company's pre-insolvency transactions; carrying on business during insolvency; additional finance; multinational cases; and proposals for reform. To compare answers across multiple jurisdictions, visit the Restructuring and insolvency Country Q&A tool. This Q&A is part of the PLC multi-jurisdictional guide to restructuring and insolvency law. For a full list of jurisdictional Q&As visit www.practicallaw.com/restructure-mjg.

A Q&A guide to restructuring and insolvency law in Hong Kong. The Q&A gives a high level overview of the most common forms of security granted over immovable and movable property; creditors' and shareholders' ranking on a company's insolvency; mechanisms to secure unpaid debts; mandatory set-off of mutual debts on insolvency; state support for distressed businesses; rescue and insolvency procedures; stakeholders' roles; liability for an insolvent company's debts; setting aside an insolvent company's pre-insolvency transactions; carrying on business during insolvency; additional finance; multinational cases; and proposals for reform. To compare answers across multiple jurisdictions, visit the Restructuring and insolvency Country Q&A tool. This Q&A is part of the PLC multi-jurisdictional guide to restructuring and insolvency law. For a full list of jurisdictional Q&As visit www.practicallaw.com/restructure-mjg.

A Q&A guide to restructuring and insolvency law in Italy. The Q&A gives a high level overview of the most common forms of security granted over immovable and movable property; creditors' and shareholders' ranking on a company's insolvency; mechanisms to secure unpaid debts; mandatory set-off of mutual debts on insolvency; state support for distressed businesses; rescue and insolvency procedures; stakeholders' roles; liability for an insolvent company's debts; setting aside an insolvent company's pre-insolvency transactions; carrying on business during insolvency; additional finance; multinational cases; and proposals for reform. To compare answers across multiple jurisdictions, visit the Restructuring and Insolvency Country Q&A tool. This Q&A is part of the PLC multi-jurisdictional guide to restructuring and insolvency law. For a full list of jurisdictional Q&As visit www.practicallaw.com/restructure-mjg.

A Q&A guide to restructuring and insolvency law in Luxembourg. The Q&A gives a high level overview of the most common forms of security granted over immovable and movable property; creditors' and shareholders' ranking on a company's insolvency; mechanisms to secure unpaid debts; mandatory set-off of mutual debts on insolvency; state support for distressed businesses; rescue and insolvency procedures; stakeholders' roles; liability for an insolvent company's debts; setting aside an insolvent company's pre-insolvency transactions; carrying on business during insolvency; additional finance; multinational cases; and proposals for reform. To compare answers across multiple jurisdictions, visit the Restructuring and insolvency Country Q&A tool. This Q&A is part of the PLC multi-jurisdictional guide to restructuring and insolvency law. For a full list of jurisdictional Q&As visit www.practicallaw.com/restructure-mjg.

A Q&A guide to restructuring and insolvency law in Norway. The Q&A gives a high level overview of the most common forms of security granted over immovable and movable property; creditors' and shareholders' ranking on a company's insolvency; mechanisms to secure unpaid debts; mandatory set-off of mutual debts on insolvency; state support for distressed businesses; rescue and insolvency procedures; stakeholders' roles; liability for an insolvent company's debts; setting aside an insolvent company's pre-insolvency transactions; carrying on business during insolvency; additional finance; multinational cases; and proposals for reform. To compare answers across multiple jurisdictions, visit the Restructuring and insolvency Country Q&A tool. This Q&A is part of the PLC multi-jurisdictional guide to restructuring and insolvency law. For a full list of jurisdictional Q&As visit www.practicallaw.com/restructure-mjg.

A Q&A guide to restructuring and insolvency law in Russia. The Q&A gives a high level overview of the most common forms of security granted over immovable and movable property; creditors' and shareholders' ranking on a company's insolvency; mechanisms to secure unpaid debts; mandatory set-off of mutual debts on insolvency; state support for distressed businesses; rescue and insolvency procedures; stakeholders' roles; liability for an insolvent company's debts; setting aside an insolvent company's pre-insolvency transactions; carrying on business during insolvency; additional finance; multinational cases; and proposals for reform. To compare answers across multiple jurisdictions, visit the Restructuring and insolvency Country Q&A tool. This Q&A is part of the PLC multi-jurisdictional guide to restructuring and insolvency law. For a full list of jurisdictional Q&As visit www.practicallaw.com/restructure-mjg.

A Q&A guide to restructuring and insolvency law in South Korea. The Q&A gives a high level overview of the most common forms of security granted over immovable and movable property; creditors' and shareholders' ranking on a company's insolvency; mechanisms to secure unpaid debts; mandatory set-off of mutual debts on insolvency; state support for distressed businesses; rescue and insolvency procedures; stakeholders' roles; liability for an insolvent company's debts; setting aside an insolvent company's pre-insolvency transactions; carrying on business during insolvency; additional finance; multinational cases; and proposals for reform. To compare answers across multiple jurisdictions, visit the Restructuring and insolvency Country Q&A tool. This Q&A is part of the PLC multi-jurisdictional guide to restructuring and insolvency law. For a full list of jurisdictional Q&As visit www.practicallaw.com/restructurehandbook.

A Q&A guide to restructuring and insolvency law in Sweden. The Q&A gives a high level overview of the most common forms of security granted over immovable and movable property; creditors' and shareholders' ranking on a company's insolvency; mechanisms to secure unpaid debts; mandatory set-off of mutual debts on insolvency; state support for distressed businesses; rescue and insolvency procedures; stakeholders' roles; liability for an insolvent company's debts; setting aside an insolvent company's pre-insolvency transactions; carrying on business during insolvency; additional finance; To compare answers across multiple jurisdictions, visit the Restructuring and insolvency Country Q&A tool. This Q&A is part of the PLC multi-jurisdictional guide to restructuring and insolvency law. For a full list of jurisdictional Q&As visit www.practicallaw.com/restructure-mjg.

A Q&A guide to restructuring and insolvency law in the United States. The Q&A gives a high level overview of the most common forms of security granted over immovable and movable property; creditors' and shareholders' ranking on a company's insolvency; mechanisms to secure unpaid debts; mandatory set-off of mutual debts on insolvency; state support for distressed businesses; rescue and insolvency procedures; stakeholders' roles; liability for an insolvent company's debts; setting aside an insolvent company's pre-insolvency transactions; carrying on business during insolvency; additional finance; multinational cases; and proposals for reform. To compare answers across multiple jurisdictions, visit the Restructuring and insolvency Country Q&A tool. This Q&A is part of the PLC multi-jurisdictional guide to restructuring and insolvency law. For a full list of jurisdictional Q&As visit www.practicallaw.com/restructure-mjg.

The High Court has sanctioned a scheme of arrangement for a German company despite none of the scheme creditors being domiciled in the UK.

This article outlines the peculiarities of the Spanish system regarding foreign investors buying assets from insolvent companies. Specifically, this article examines the increase in and diversification of insolvencies; the background on the insolvency landscape (including the Insolvency Act, subject of the offer and judicial process); successor liability and timing of the acquisition. This article is part of the PLC multi-jurisdictional guide to restructuring and insolvency law. For a full list of jurisdictional Q&As visit www.practicallaw.com/restructure-mjg.

The European Court of Justice has held that, in order to open territorial insolvency proceedings, a creditor must show that there are objective factors that prevent the opening of main insolvency proceedings in the state of the debtor’s centre of main interest, and that it is owed a debt by the debtor directly.

The Inner House of the Court of Session has held that the Scottish courts could, in the context of the administration of a Scottish bank, take the bank’s claim against its Icelandic parent bank into account when applying insolvency set off, even though the Scottish bank’s claim was invalid under Icelandic law.

This Law Firm Publication by Vasil Kisil looks at why there has been continuted growth in the Ukrainian distressed debt market in the last 12 months. This article focuses on the debt restructuring process that is operating and looks at key legal issues that should be considered when planning and structuring a transaction with cross-border elements to it.

The High Court has recognised Danish insolvency proceedings as foreign main proceedings under the Cross-Border Insolvency Regulations 2006 (SI 2006/1030) and has granted discretionary relief backdated to the start of the Danish proceedings.

The High Court has held that an insolvent Swiss company should be joined to ongoing English arbitration proceedings because they were a better venue than the Swiss bankruptcy court for resolving a substantive contractual dispute.

A look at the exposure of directors in troubled companies across a number of EU jurisdictions.

The restructuring of WIND Hellas was an innovative and complex transaction. This article examines the key features of the restructuring.

This chapter provides an overview of the current legal framework in Brazil concerning: transactions which can be considered fraudulent in the event of a debtor’s insolvency; the types of security and guarantees which can be taken over debt; and the recognition and enforcement of foreign judgments and arbitral awards. This article is part of the PLC multi-jurisdictional guide to restructuring and insolvency. For a full list of contents visit www.practicallaw.com/restructurehandbook.

A Q&A guide to restructuring and insolvency law in Indonesia. The Q&A gives a high level overview of the most common forms of security granted over immovable and movable property; creditors' and shareholders' ranking on a company's insolvency; mechanisms to secure unpaid debts; mandatory set-off of mutual debts on insolvency; state support for distressed businesses; rescue and insolvency procedures; stakeholders' roles; liability for an insolvent company's debts; setting aside an insolvent company's pre-insolvency transactions; carrying on business during insolvency; additional finance; multinational cases; and proposals for reform. For a full list of recommended restructuring and insolvency law firms and lawyers in Indonesia, please visit PLC Which lawyer? This Q&A is part of the PLC multi-jurisdictional guide to restructuring and insolvency law. For a full list of jurisdictional Q&As visit www.practicallaw.com/restructurehandbook.

A Q&A guide to restructuring and insolvency law in Israel. The Q&A gives a high level overview of the most common forms of security granted over immovable and movable property; creditors' and shareholders' ranking on a company's insolvency; mechanisms to secure unpaid debts; mandatory set-off of mutual debts on insolvency; state support for distressed businesses; rescue and insolvency procedures; stakeholders' roles; liability for an insolvent company's debts; setting aside an insolvent company's pre-insolvency transactions; carrying on business during insolvency; additional finance; multinational cases; and proposals for reform. This Q&A is part of the PLC multi-jurisdictional guide to restructuring and insolvency law. For a full list of jurisdictional Q&As visit www.practicallaw.com/restructure-mjg.

A Q&A guide to restructuring and insolvency law in Turkey. The Q&A gives a high level overview of the most common forms of security granted over immovable and movable property; creditors' and shareholders' ranking on a company's insolvency; mechanisms to secure unpaid debts; mandatory set-off of mutual debts on insolvency; state support for distressed businesses; rescue and insolvency procedures; stakeholders' roles; liability for an insolvent company's debts; setting aside an insolvent company's pre-insolvency transactions; carrying on business during insolvency; additional finance; multinational cases; and proposals for reform. This Q&A is part of the PLC multi-jurisdictional guide to restructuring and insolvency law. For a full list of jurisdictional Q&As visit www.practicallaw.com/restructurehandbook.

In Pearson and others v Lehman Brothers Finance SA and others [2010] EWHC 2914 (Ch) (19 November 2010), the High Court held that Lehman Brothers International Europe was beneficially entitled to certain securities held in its house depot account that it had originally purchased for the account of other Lehman companies, with the exception of a small number of securities held on trust for Lehman Brothers Inc. NOTE: this decision was upheld by the Court of Appeal, see Legal update, Appeal dismissed in Lehman "Rascals" case (Court of Appeal).

The Court of Appeal has held that the common law permits the enforcement of foreign judgments against individuals where these are made in the context of insolvency proceedings, notwithstanding the English rules of private international law.

The High Court has exercised its discretion under the Cross-Border Insolvency Regulations 2006 (SI 2006/1030) and ordered an English limited liability partnership to disclose records covering a 16-year period to a US bankruptcy trustee.

The High Court has held that the supervisors of a company voluntary arrangement must follow the CVA’s terms and adjudicate a creditor’s claim, even though the validity of the claim may be affected by the outcome of ongoing US litigation.

The Court of Appeal has held that the correct test to determine a company’s centre of main interests under the Cross Border Insolvency Regulations 2006 (SI 2006/1030) is that set out in Re Eurofood IFSC Ltd.

This article is part of the PLC multi-jurisdictional guide to Tax on Transactions. For a full list of contents visit www.practicallaw.com/taxontransactionshandbook.

A Q&A guide to restructuring and insolvency law in Finland. This Q&A is part of the PLC multi-jurisdictional guide to restructuring and insolvency law. For a full list of jurisdictional Q&As visit www.practicallaw.com/restructurehandbook.

This article considers the emergence of loan-to-own as an acquisition strategy in Europe.

The High Court has held that it has a common law power to order payment of English asset realisations to foreign liquidators if the foreign insolvency regime provides for a pari passu distribution of such realisations to creditors.  

A cross-border financial restructuring can involve a wide range of different processes in various jurisdictions.This article looks at recent developments impacting on the use of both formal and informal debt restructuring procedures in the US and Europe, practical issues for lawyers advising on cross-border debt restructurings, key legal considerations on a cross-border debt restructuring, and the role of management and directors involved in a restructuring exercise.

An examination of the impact of an insolvent respondent in an arbitration.

The second part in a series on distressed debt considers and compares the insolvency proceedings and regimes in the UK and the US.

Cross-border insolvency proceedings involving affiliated debtors within a corporate group are becoming the norm. Against this background, this chapter focuses on key issues and trends relevant to cross-border restructurings between the US and Canada, including the effect of recent economic developments, Canadian insolvency reform, using jurisdiction to advantage through the example of the recent Chapter 15 case involving MuscleTech, meeting the requirements for recognition under Chapter 15, recognition of foreign non-main proceedings under existing law and pending insolvency reforms in Canada, the impact of new provisions for the recognition of foreign insolvency proceedings, and assets sales.

This chapter provides an overview of Chapter 15 and its effect on US cross-border insolvency law. In particular it looks at the purposes of Chapter 15, commencing a Chapter 15 case, contesting recognition of a foreign proceeding, recognition of foreign proceeding as main or non-main, relief on recognition of a foreign proceeding, foreign debtors still eligible to commence a plenary US Chapter 7 or 11 case, and concurrent proceedings.

This chapter gives an insight into industrial relations and employment law considerations for companies proposing to restructure a business in continental European countries.

Recent reform of the US Bankruptcy Code introduces some radical changes, which are likely to promote more effective co-ordination of cross-border insolvencies. This article sets out the main provisions of the reform, and considers its significance both domestically and beyond.

Of all the lawyers recommended in the Global Counsel Restructuring and Insolvency Handbook 2002, 10 stand out as leaders in their field. Here they speak about Enron and other recent insolvencies.

Airlines and telecoms companies are not the only ones struggling under a heavy debt burden. Danka Business Systems PLC recently faced maturing debts of US$720 million. This in-depth analysis examines the challenging three point refinancing plan the UK/US group devised to meet this massive demand for cash.

An outline of the insolvency and bankruptcy procedure in Germany together with guidance for potential purchases from insolvent companies.

A consideration of the existing legal framework and some proposals for reform.