 | Court of Appeal confirms the effect of the disclaimer of a lease upon the liabilities of a guarantor
The recent decision of the Court of Appeal in Gabriella Shaw v Hazel Doleman1 will offer some reassurance to landlords who are facing a period of increasing tenant insolvencies. In Doleman the Court of Appeal affirmed that the liability of a tenant guarantor under an authorised guarantee agreement (“AGA”) continues despite the disclaimer of the lease by the liquidator of the insolvent current tenant. Read >>
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 | Administrators of LBIE to consider scheme of arrangement to deal with claims for the return of property and client money
The Administrators of Lehman Brothers International Europe ("LBIE") have been given leave by the English High Court to formulate and propose an arrangement under statute for dealing with claims for the return of client money and other assets (a "scheme of arrangement"). Read >>
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| How to deal with demands for payment
Suppliers and subcontractors are employing increasingly aggressive strategies to ensure they get paid. These include the service of “statutory demands” (formal demands for payment) threatening the presentation of a “winding-up petition” (applications to the Court for the winding-up or “liquidation” of a company on the basis of an unpaid debt). Read >>
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| Regulations on Bankruptcy of Financial Enterprises Established and Operating in Vietnam
On 3 November 2008, the Government of Vietnam issued Decree No. 114/2008/ND-CP ("Decree 114") providing details on implementation of the Law on Bankruptcy applicable to enterprises conducting business in the insurance, securities and other financial sectors. Read >>
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| Distressed Enterprises in Germany – HR Restructuring Opportunities
Investors often perceive the German employment law environment as a rather inflexible and strict framework. This perception can have a discouraging effect, which in the end might even prevent an investment, which otherwise had been promising. It is not our intention to discuss here whether or not this impression of possible investors is correct. Read >>
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| The Banking Act 2009 introduces new bank insolvency and administration procedures
On 12 February 2009 the Banking Act 2009 (the “Act”) received Royal Assent. The Act, which provides a new and permanent framework for dealing with banks in financial difficulties, is a significant development in the insolvency laws of this country as they apply to UK banks. It is particularly relevant in an economic climate in which more bank failures cannot be ruled out. Read >>
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| Court declines liquidators’ request to disapply the prescribed part
In a recent case the High Court turned down a request by a liquidator pursuant to s176A(5) Insolvency Act 1986 to disapply the prescribed part. In doing so it held that disapplication should be the exception and not the rule. Read >>
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| The Banking Act – the new “Special Resolution Regime” for dealing with failing banks
On 21 February 2009 the Banking Act (the “Act”) became effective as law. Also on 21 February, the statutory instruments dealing with safeguards for partial property transfers and ‘no creditor worse off’ provisions (the “Orders”) came into effect. Read >>
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| Recent clarification of the Proceeds of Crime Act 2002
The High Court, in a judgment handed down recently[1], has provided useful clarification of a number of issues relevant to the relationship between a bank’s statutory duty to seek “appropriate consent” under the Proceeds of Crime Act 2002 and its duties (contractual or otherwise) to its customer. Although the case was concerned with a bank, it will be of interest to any professional who encounters the Act. Read >>
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| Mayer Brown launches an Asset Based Lending Workout Group
28 January 2009 - In response to the difficult market conditions, leading international law firm Mayer Brown has launched an international Asset Based Lending (ABL) Workout Group which combines the expertise of Mayer Brown's highly regarded Asset Based Lending and Receivables Financing Group with the Restructuring Bankruptcy and Insolvency Team. Read >>
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| No transfer under TUPE where administration was instituted with a view to subsequent liquidation
In a recent appeal1 the Employment Appeal Tribunal held that, where the appointment of administrators was with a view to the eventual liquidation of the insolvent company, employees who were taken on by a purchaser of assets from the company in administration were not automatically transferred to the purchaser pursuant to the Transfer of Undertakings Protection of Employment) Regulations 2006 (“TUPE 2006”) Read >>
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| High Court declines to compel the administrators of Lehman Brothers International (Europe) to provide a particular group of creditors with information in respect of securities held by LBIE on their behalf
The High Court1 has declined to make an Order compelling the administrators of Lehman Brothers International (Europe) (“LBIE”) to provide further information in respect of securities held by LBIE under prime brokerage and margin lending arrangements. Read >>
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| Permission to enforce a covenant in a lease prohibiting parting with possession against a tenant in administration and the treatment of post-administration rent as an expense
The Court of Appeal1 has refused to give permission to a landlord to commence proceedings against a tenant company in administration. The landlord sought a mandatory order for the immediate termination of a licence which had been granted by the company in breach of the terms of the lease. Read >>
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| UK Pensions Regulator’s statement on its approach to current market conditions
The UK Pensions Regulator (“tPR”) has announced that it is issuing a statement to the trustees of all work-based pension schemes setting out its general position in relation to current market conditions. Read >>
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| Relaxation of the requirement to file for insolvency under German law
In response to the current crisis in the financial markets, the German Parliament has passed new legislation, which came into force on 18 October 2008, amending parts of the German Insolvency Code. These amendments include a relaxation of the obligation on the management of limited liability companies (and other legal entities) to file for insolvency in the event that the company is “over-indebted”, affording such companies a breathing space in which to recover or possibly to restructure their business. Read >>
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| Government publishes amendments to the Pensions Regulator’s “moral hazard” powers
22 October 2008 - In April 2008 the Government announced that it intended to extend the Pensions Regulator’s “moral hazard” (anti-avoidance) powers. Drafting has now been introduced into the Pensions Bill which gives effect to these changes. Although the Pensions Bill is expected to become law at the end of the year, the Government has already confirmed that certain changes will be retrospective to 14 April 2008. Read >>
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| Financial Institution Bankruptcy: Points to Consider in Affected Derivatives and Structured Products
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| Inspection by a third party of the Court file in insolvency proceedings
4 July 2008 - On 2 July 2008 the High Court handed down a decision which concerned, in part, its power under Insolvency Rules 1986, rule 7.31(4) to grant special leave to any person to inspect the file in insolvency proceedings. Read >>
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| Block transfers of IP appointments - recent Court of Appeal decision
4 July 2008 - The Court of Appeal has confirmed that the Court has the ability to appoint a new trustee in bankruptcy, or a new liquidator in a compulsory liquidation, following the removal of the previous office holder, under its power to give directions in relation to any particular matter arising under a bankruptcy or winding up (ss303(2) and 168(3) Insolvency Act 1986). Read >>
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| Treatment of protective awards in proofs of debt
June 2008 - Treatment of protective awards in proofs of debt Read >>
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