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INSOL International News Update
March 2018  Issue No. 3
This issue is kindly sponsored by...

DAVID RUBIN&PARTNERS
Chartered Accountants • Licensed Insolvency Practitioners


Contents at a Glance...

Editor's Note

Highlight Article

The Americas

Asia Pacific

Europe, Africa and Middle East

Publications & News

Conferences & Seminars

Editor's Note

With just over a month to go until INSOL New York, INSOL's annual regional conference this year, it is a pleasure to present you with INSOL’s March 2018 news update.

Clearly one of the most enjoyable elements of being a restructuring and insolvency practitioner, is the opportunity to become involved in complex cross-border cases and meet with people from all over the world.  At the same time, as this month’s edition of the newsletter shows, there is sometimes a struggle when local insolvency regimes do not fully recognise the effects of an insolvency proceeding opened in another country. In some cases, like in my home jurisdiction the Netherlands, the UNCITRAL Model Law has not been implemented nor is there is a local Dutch law recognition process available. Two of the articles in this month’s edition (see under Australia and Singapore) refer to situations where despite having adopted the UNCITRAL Model Law, there were certain limitations on the ability to align the proceedings in various countries.  The recent decision of the English High Court in relation to recognition in England of the Azerbaijani restructuring of the International Bank of Azerbaijan saw the application of an old common law rule leading to a conclusion that the restructuring would not be finally recognised in England in a manner that would release the claims of creditors with English law governed claims; and in Singapore, in a first reported decision of its kind, the court was required to address the public policy exception in deciding whether it could grant recognition to a foreign insolvency representative appointed under Chapter 11 proceedings in the United States after the issuance of a Singapore injunction enjoining those proceedings.

Many countries have in recent years introduced new restructuring and insolvency regimes. I am always slightly embarrassed when I have to admit to international colleagues that our Dutch Bankruptcy Act was introduced in the nineteenth century. I am sure you will agree that we can be seen as “the new kid on the block” compared to some, as when reading the final article of the newsletter we see that certain parts of the insolvency framework in Jersey stem from the medieval period.

Vincent Vroom
Partner
Loyens & Loeff N.V.

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Highlight Article


Update on Dutch Restructurings 
 

 

In 2012, the Dutch legislator announced a number of measures aimed at improving the restructuring capabilities of the aforementioned rather ancient Dutch Bankruptcy Act (which dates from 1893). In particular, proposals on the “Dutch pre-pack” and the “Dutch scheme of arrangement” were welcomed by Dutch practitioners.

The Highlight Article looks at the current position with regard to “Dutch pre-packs” which are used to prepare and negotiate a sale of all or part of a debtor’s business prior to bankruptcy, whereby the actual transfer is implemented post-bankruptcy.  In particular, the article examines the continued attractiveness of the pre-pack in the light of recent case law on the application of EC Directive 2001/23/EC on the Transfer of Undertakings relating to the safeguarding of employees’ rights in the event of such transfers.

A welcome step forward with regard to the second proposed amendment to the Dutch bankruptcy code concerning the introduction of a “Dutch scheme of arrangement” was the publication for consultation purposes in September 2017 by the Dutch legislator of an amended bill on pre-insolvency proceedings. The new proposal enables a company in financial distress to propose a composition to its creditors and shareholders outside insolvency proceedings.  At present, companies can informally offer a ‘composition’ to their unsecured creditor, but there is no mechanism to cram down opposing creditors outside of an insolvency proceeding.  The hope is that the new Dutch coalition government will push on with these proposed legislative changes this year, as the scheme of arrangement, in particular, will be an extremely useful restructuring tool once it becomes enacted into Dutch law.

 

By

Vincent Vroom

Partner
Loyens & Loeff N.V. 


To read the full article please click here

 

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The Americas


Cases

USA

No Safe Harbour for “Overarching Transfer”: Trustee can Avoid Payments Passing Through Financial Institutions
 

Merit Management Group, LP v. FTI Consulting, Inc.  (2018) No. 16-784 

On 27 February 2018, the Supreme Court issued a significant decision that will increase the exposure of debt and equity investors that receive payments from all kinds of highly leveraged transactions, including leveraged buy-outs and dividend recapitalisations. The unanimous decision affirmed the Seventh Circuit’s holding that section 546(e) of the Bankruptcy Code does not operate to shield a recipient of an alleged fraudulent transfer when the recipient is not a covered financial institution, notwithstanding the fact that the transfer at issue may have flowed through such a financial institution.  Overturning decisions by other circuit courts of appeal, the Court examined the statutory structure and context of the Bankruptcy Code’s “safe harbour” to distinguish transfers made by, to, or for the benefit of financial intermediaries, with those that merely pass through such intermediaries.

 

For a case note please see K&L Gates Legal Insight, 1 March 2018

For the case decision please click here

Legislation 

USA
 
Treasury Recommends Retaining Orderly Liquidation Authority

On 21 February 2018, the U.S. Treasury Department released its long-awaited report on the Orderly Liquidation Authority (OLA) established under Title II of the Dodd-Frank Wall Street Reform and Consumer Protection Act (the Dodd-Frank Act). The report, Orderly Liquidation Authority and Bankruptcy Reform (the Report), recommends retaining OLA and adopting a new Chapter 14 of the U.S. Bankruptcy Code to make resorting to OLA proceedings less likely. The new proposed Chapter 14, which has been developed over several years and has been the subject of several legislative proposals, could be used to resolve systemically important financial institution, narrowing the scenarios where OLA would need to be used. This article examines the background to the OLA and the key recommendations made in the Report.

For the full article please see Cleary Gottlieb Alert Memorandum, 28 February 2018


Articles

British Virgin Islands

The Rise of BVI Special Purpose Acquisition Companies 

 

There has recently been a resurgence of interest in special purpose acquisition companies (SPACs), which are also known as ‘blank check’ or ‘cash shell’ companies. Over the past 7 years SPACs incorporated in the British Virgin Islands (BVI) have raised aggregate capital of over US$5 billion and, in 2017 alone, new BVI SPACs raised gross proceeds of approximately US$2.5 billion. This article outlines the key features of a SPAC, explores recent market trends and explains why the BVI is a popular domicile for these vehicles.


For the full article please see Conyers Dill & Pearman Newsletter, February 2018

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Asia Pacific


Cases

Australia

The Limits of Recognition under the UNCITRAL Model Law - Foreign Compromises of English Law Claims - Considerations for Australian Insolvency Professionals

Bakhshiyeva v Sberbank of Russia & Ors, Court of Appeal - Chancery Division, [2018] EWHC 59 (Ch)

A critical consideration in cross-border restructuring is international recognition of the compromise and release of claims against a debtor in formal restructuring proceedings in the debtor’s home jurisdiction. The recent decision of the English High Court in relation to recognition in England of the Azerbaijani restructuring of the International Bank of Azerbaijan (an Azerbaijan incorporated bank) saw application of an old common law rule leading to a conclusion that the restructuring would not be finally recognised in England in a manner that would release the claims of creditors with English law governed claims.

The decision highlights an important limitation to the effectiveness of the UNCITRAL Model Law on Cross-Border Insolvency, and is a blow to the concept of “modified universalism” in cross-border insolvencies. This article provides a useful summary of this important decision and examines the key points arising from the point of view of Australian practitioners. 


For a case note please see Baker McKenzie Client Alert, 27 February 2018
 
For the case decision please click here

Hong Kong

Hong Kong Court Confirms Common Law Recognition and Assistance of Foreign Voluntary Liquidations

In the Matter of an Application for Recognition and Assistance by the Joint Liquidators of Supreme Tycoon Limited (in liquidation in the British Virgin Islands) [2018] HKCFI 277 

Joint liquidators were appointed by a written shareholder’s resolution to Supreme Tycoon Limited (the Company), a company incorporated in the British Virgin Islands. The joint liquidators obtained a letter of request from the East Caribbean Supreme Court for recognition of their appointment in Hong Kong to obtain information, books and records about the Company’s affairs from various third parties in Hong Kong. This letter of request was issued on 17 March 2017 and considered by the Hong Kong Court. On 8 February 2018, the Hong Kong Court of First Instance ruled that the common law power to recognise and assist foreign insolvency proceedings extends to voluntary liquidations – this is the first authority on this issue in Hong Kong.  


For a case note please see Hogan Lovells Article, March 2018

For the case decision please click here


Singapore


Public Policy in Cross-border Insolvency under the Model Law

Re: Zetta Jet Pte Ltd and Others [2018] SGHC 16 


This is a landmark decision by the Singapore High Court on the question of public policy under the UNCITRAL Model Law on Cross-Border Insolvency (1997) as adopted by Singapore in the Tenth Schedule of its Companies Act (the Singapore Model Law).  In this, the first reported decision of its kind, the primary question the court was required to address was whether the Singapore court could grant recognition to a foreign insolvency representative appointed under Chapter 11 proceedings in the United States after the issuance of a Singapore injunction enjoining those proceedings. This led to a consideration by the Singapore court of the standard of the public policy exception under Article 6 of the Singapore Model Law. 

 
For a case note please see Oon & Bazul LLP Highlights, March 2018

For the case decision please click here



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Europe, Africa and Middle East


Cases

UK

English High Court Assesses Whether a Funder’s Security over the Assets of the Borrowing Entity Includes the Proceeds of Tax Credit Payments

Plant & Plant (Administrators of Relentless Software Ltd) v Vision Games 1 Ltd & Ors [2018] EWHC 108 (Ch) 

This recent English high Court case concerns the attempt of a funder of a video games developer to recover the proceeds of a tax credit payment made by HMRC to the developer, pursuant to the security that had been granted by the developer to the funder.  Although this case turns on its specific facts, the decision acts as a useful reminder of the importance (particularly in bespoke and complex funding and security arrangements) of ensuring that the contractual and security documents clearly set out what the intention of the parties is and taken into account the risk of the intervening insolvency of one of the parties.


For a case note please see Mayer Brown Legal Update, February 2018

For the case decision please click here


Legislation

Jersey

Jersey: Revised JFSC Codes of Practice Issued

The Jersey Financial Services Commission has released its revised Codes of Practice which will be effective from 21 March 2018. There are some important changes which could have an impact on all regulated financial services businesses, banking businesses and insurance businesses in Jersey, as well as collective investment funds and alternative investment funds and AIF services business.  This article examines these changes, which come into effect in less than two months, and how they may affect regulated businesses.

For the full article please see Appleby News Alert, February 2018


Articles

Jersey

A Procedure of (Un)Certain Value: the Jersey Remise de biens

Representation of RBS International (Re Millbrook Park Limited) [2017] JRC 202A (30 November 2017); Representation of GG Investments Limited and Tygres Investments Limited [2017] JRC 102 (30 June 2017) 

 

These two cases illustrate the workings of one of the oldest insolvency frameworks still in operation in Europe on the island of Jersey. Under the remise de biens (handover / surrender of property) procedure a debtor asks for the protection of the court, which can only be granted on strict conditions including the pre-requisite of holding immoveable property and the prospect of the payment of the secured debt in full with a dividend for the unsecured creditors.  It is the only Jersey procedure of a suspensory type specifically to enable the rehabilitation of the debtor because it results in a discharge if successful. It is also fair for the debtor because only so much of the debtor’s property is realised as is necessary to satisfy the creditors.  Case law, reported or unreported, on the operation of its provisions is sparse which makes these two recent judgments of particular interest.

For the full article by Paul Omar, Senior Lecturer, De Montfort Law School, 15 February 2018 please click here

For the RBS case decision please click here 


For the GG and Tygres case decision please click here


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Publications & News

blications and News

INSOL International Small Practice Technical Paper Series - March 2018 


Uganda  

 

This country study on Uganda was written by Ruta Darius, Fellow, INSOL International, Partner, Namanya Kafureeka & Co. Advocates, Uganda.

INSOL International sincerely thanks Ruta Darius for providing INSOL members with this very informative paper.

To view the full paper please click here

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Conferences & Seminars


INSOL New York

29 April - 1 May 2018, Grand Hyatt, New York

 

Final Booking Deadline 28 March 2018 


With over 650 of your friends and colleagues registered to attend INSOL New York you don’t want to miss out on joining them, make sure you register to attend.  Registrations can be made online or via email or fax.
 

We have a very exciting educational program which is preceded by an Offshore Ancillary meeting on the Sunday along with a Fellows forum and Small Practice Issues meeting.  The Small Practice meeting will include two technical sessions on “Personal liability of an Insolvency Practitioner - What happens when the music stops” and “Is it worth it? - Cost assessment for debt collection abroad”.

Additionally, on Sunday afternoon there will be a dedicated session titled “The Indian Insolvency Code – Progress and Prospects”.  By May 2018, the new Indian Insolvency Code will have been in place for eighteen months.  The session will focus on the key issues around restructuring of assets, opportunities for professionals, interim and post administration financing issue and cross-border schemes. The ABI will also be holding an afternoon session on Cross-border Collisions: Mass Disaster and Mass Tort Claims. If you would like to attend either of these sessions please contact Kim Bloomberg kim@insol.ision.co.uk  

 

The main conference has a spectacular line up of professionals such as Lisa Donahue, AlixPartners;  Rudd Hermans, De Brauw Blackstone Westbroek NV; James HM Sprayregen, Kirkland & Ellis; Felicity Toube QC, South Square; Kenneth Baird, Freshfields Bruckhaus Deringer LLP; and Howard Seife, Norton Rose Fulbright to name just a few. 

 

Full details can be found in the registration brochure 

 

We look forward to welcoming accountants, lawyers, turnaround experts, judges, regulators, academics, lenders and alternate capital providers from around the world to the Conference, where our educational program will support our members’ role as leaders in international turnaround, insolvency and related credit issues. 

Register online today to guarantee your place at INSOL New York. 

 

We look forward to welcoming you all to New York, so make sure you register in plenty of time to reserve your delegate place.  For further information please contact Kim Bloomberg at kim@insol.ision.co.uk .  

 

INSOL International would like to thank our conference sponsors:

 

Main Sponsors: Borrelli Walsh | Lipman Karas | Norton Rose Fulbright | RSM 

Welcome Reception: BDO 
Gala Dinner: AlixPartners

Corporate Sponsors: Appleby | FTI | Harneys | Vendorable

Breakfast Sponsors: Deloitte | BMC Group 

Monday Lunch Sponsor: Campbells 
Tuesday Lunch Sponsor: Burford Capital 
Monday Coffee Break Sponsor: Archer & Greiner P.C.
Tuesday Coffee Break Sponsor : South Square

Younger Members Reception: Goodmans LLP
INSOL Fellows Reception & Forum:  Curtis Mallet-Prevost, Colt & Mosle LLP | Davis Polk & Wardwell LLP | Nixon Peabody LLP | Schiebe und Collegen
Small Practice Meeting: Porzio Bromberg & Newman P.C.


INSOL New York
Offshore Ancillary Meeting

Welcome Cocktail Reception
Saturday 28 April 2018

Offshore Programme
Sunday 29 April 2018
9.00am – 5.35pm

Following on from our successful one day offshore seminars in the Caribbean and the Channel Islands together with the successful offshore ancillary meetings held prior to INSOL Miami 2012, INSOL Hong Kong 2014 and INSOL Sydney 2017, we will be holding a further offshore ancillary meeting prior to INSOL New York 2018.

The use of offshore jurisdictions continues to be attractive to entities from around the world in their business planning.   This one day programme seeks to explore the thinking behind the use of such entities and jurisdictions when determining the best platform for restructuring international groups who are facing some financial stress.  This will take us from the decision making in the boardroom, through to the legal issues arising and the court’s review of the chosen path.  It will also explore recent cases which affect such decisions.

Full details of the programme can be found in the conference registration brochure

INSOL International would like to thank our offshore sponsors:

Main sponsors:
Borrelli Walsh | Carey Olsen | FFP | Walkers
Welcome Reception sponsor: KPMG
Coffee Break sponsor: KRyS Global



 

INSOL International Buenos Aires One Day Seminar 

Thursday 22 March 2018, Marval O'Farrell Mairal's offices 

A few places are remaining for the INSOL International Buenos Aires One Day Seminar to be held on Thursday 22nd March 2018. To register please contact Susannah Drummond Moray - susannah@insol.ision.co.uk.

The Main Organising Committee has prepared an educational program which covers several important topics relevant to Argentina, as well as wider cross-border issues in the Latin American region. Full details are available on our website



INSOL International / INSOL Europe / FILA Helsinki One Day Joint Seminar

Wednesday 13 June 2018
Hilton Helsinki Strand, Helsinki, Finland

 

Registrations are open for our first one day seminar in Helsinki, Finland on Wednesday 13 June 2018.  We are delighted to be working with our member association in the region, Finnish Insolvency Law Association and INSOL Europe on this project. To download the registration brochure or register securely on line click here 

We would like to thank the following for their generous support of this seminar:

Gold Sponsor:
Hannes Snellman

 

For further information and details of sponsorship opportunities please contact Penny Robertson, INSOL International at pennyr@insol.ision.co.uk 




INSOL International Jersey One Day Seminar
Tuesday 3 July 2018
Radisson Blu Waterfront, St Helier, Jers
ey

Registrations are open  for the fifth annual Channel Islands one day seminar taking place in St. Helier, Jersey this year. The seminar is organised in association with ARIES, the Channel Islands INSOL member association, and with the support of restructuring professionals from Jersey and Guernsey. 

Download a copy of the registration brochure now.

Register to secure your place as we anticipate this will be a very well attended seminar! 

We would like to thank the following sponsors for their generous support of the INSOL Channel Islands Seminar.

Platinum Sponsor: Bedell Cristin; Grant Thornton
Coffee Break Sponsor: KRyS Global
Dinner Sponsor: Carey Olsen

For further information and details of sponsorship opportunities available, please contact Sarah Smith, INSOL International at sarah@insol.ision.co.uk 



INSOL International Jakarta One Day Seminar
Thursday 13 September 2018
Fairmont Hotel, Jakarta, Indonesia

INSOL International will be running a one-day seminar in Jakarta on Thursday 13 September 2018. The Main Organising Committee are preparing a stimulating and relevant program.

 

For further information and details of sponsorship opportunities please contact Susannah Drummond Moray, INSOL International at susannah@insol.ision.co.uk


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Contact INSOL


If you would like to send an article for inclusion in one of our forthcoming issues please contact our Technical Officer, Louise Jennings at louise@insol.ision.co.uk

If you would like to introduce a new member to INSOL International please contact our Database Manager, Tony Ashton, at tony@insol.ision.co.uk

Electronic Newsletter Editorial Committee Members

 Stephen Briscoe (Chair)  FFP, British Virgin Islands
 Scott Abel  Fellow, INSOL International
 Buddle Findlay, New Zealand   
 Tara Cooper Burnside

 Fellow, INSOL International

 Higgs & Johnson, Bahamas

 Ian Dorey  K&L Gates, Australia 
 Matthew Goucke  Fellow, INSOL International
 Walkers, Cayman Islands
 Volker Kammel  Reed Smith, Germany 
 Sim Kwan Kiat  Rajah & Tann, Singapore 
 David Lawton  Bracewell LLP, USA  
 Fábio Rosas  Souza Cescon, Brazil  
 Andrew Thorp  Harneys, British Virgin Islands                                   
 Alison Timme  PwC, South Africa 
 Vincent Vroom  Fellow, INSOL International
 Loyens & Loeff, UK


This issue is kindly sponsored by...

DAVID RUBIN&PARTNERS
Chartered Accountants • Licensed Insolvency Practitioners


INSOL International Group of Thirty-Six


The Group of Thirty-Six features some of the most prominent and influential firms within the insolvency and turnaround profession. The aim of the Group of Thirty-Six is to work with INSOL to develop best practice guidelines and develop legislation to enhance the ability of practitioners globally to save businesses throughout the world.

AlixPartners LLP 
Allen & Overy LLP 
Alvarez & Marsal 
Baker McKenzie
BDO
Brown Rudnick LLP
BTG Global Advisory  
Clayton Utz 
Cleary Gottlieb Steen & Hamilton LLP 
Clifford Chance LLP 
Conyers Dill & Pearman 
Davis Polk & Wardwell LLP 
De Brauw Blackstone Westbroek
Deloitte LLP 
Dentons 
DLA Piper 
EY 
Ferrier Hodgson 
Freshfields Bruckhaus Deringer LLP 
FTI Consulting
Goodmans LLP 
Grant Thornton 
Greenberg Traurig LLP 
Hogan Lovells 
Huron Consulting Group 
Jones Day 
King & Wood Mallesons 
Kirkland & Ellis LLP 
KPMG LLP 
Linklaters LLP  
Morgan, Lewis & Bockius LLP 
Norton Rose Fulbright 
Pepper Hamilton LLP 
Pinheiro Neto Advogados
PPB Advisory 
PwC 
Rajah & Tann Asia 
RBS 
RSM 
Shearman & Sterling LLP
Skadden, Arps, Slate, Meagher & Flom LLP 
South Square 
Weil, Gotshal & Manges LLP 
White & Case LLP  

INSOL International Member Associations


American Bankruptcy Institute  
Asociación Argentina de Estudios Sobre la Insolvencia  
Asociacion Uruguaya de Asesores en Insolvencia y Reestructuraciones Empresariales  
Association of Business Recovery Professionals - R3  
Association of Restructuring and Insolvency Experts  
Australian Restructuring, Insolvency and Turnaround Association  
Bankruptcy Law and Restructuring Research Centre, China University of Politics and Law 
Business Recovery and Insolvency Practitioners Association of Nigeria  
Business Recovery and Insolvency Practitioners Association of Sri Lanka  
Canadian Association of Insolvency and Restructuring Professionals  
Canadian Bar Association (Bankruptcy and Insolvency Section)  
Commercial Law League of America (Bankruptcy and Insolvency Section)  
Especialistas de Concursos Mercantiles de Mexico  
Finnish Insolvency Law Association  
Ghana Association of Restructuring and Insolvency Advisors  
Hong Kong Institute of Certified Public Accountants (Restructuring and Insolvency Faculty)  
INSOL Europe  
INSOL India  
INSOLAD - Vereniging Insolventierecht Advocaten 
Insolvency Practitioners Association of Malaysia  
Insolvency Practitioners Association of Singapore  
Instituto Brasileiro de Estudos de Recuperação de Empresas  
Instituto Brasileiro de Gestão e Turnaround  
Instituto Iberoamericano de Derecho Concursal  
International Association of Insurance Receivers  
International Women’s Insolvency and Restructuring Confederation  
Japanese Federation of Insolvency Professionals 
Korean Restructuring and Insolvency Practitioners Association   
Law Council of Australia (Business Law Section)  
Malaysian Institute of Certified Public Accountants  
National Association of Federal Equity Receivers  
Nepalese Insolvency Practitioners Association  
NIVD – Neue Insolvenzverwaltervereinigung Deutschlands e.V.  
  Recovery and Insolvency Specialists Association (BVI) Ltd  
 Recovery and Insolvency Specialists Association (Cayman) Ltd 
Restructuring and Insolvency Specialists Association of Bermuda 
REFOR–CGE, Register of Insolvency Practitioners within "Consejo General de Economistas, CGE"  
Restructuring Insolvency & Turnaround Association of New Zealand  
Russian Union of Self-Regulated Organizations of Arbitration Managers  
Society of Insolvency Practitioners of India  
South African Restructuring and Insolvency Practitioners Association   
Turnaround Management Association do Brasil
Turnaround Management Association (INSOL Special Interest Group)
 

INSOL International

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