Asset Sales and Secured Creditor Control in Restructuring: A Comparison of the UK,US and Canadian Models

The primary insolvency restructuring mechanism in the UK is administration under the Insolvency Act 1986, as amended by the Enterprise Act 2002. In an administration, an insolvency professional known as an administrator, who is accountable to the insolvent company's creditors as a whole, is appointed to oversee the restructuring. The administration process was designed to rehabilitate distressed but viable companies and businesses and to maximize creditors' recoveries. Increasingly, however, insolvent companies are using this process to sell substantially all of their assets through pre‐packaged administrations or ‘pre‐packs’. In a pre‐pack, the insolvent company and its senior creditors negotiate the terms of the sale prior to initiating administration proceedings and appointing an administrator. The administrator then implements the deal, often with little or no input from junior creditors or other stakeholders. Both the US Bankruptcy Code and the Companies' Creditors Arrangement Act in Canada permit insolvent companies to sell substantially all of their assets under the auspices of the restructuring legislation. This article compares pre‐packs with these US and Canadian processes, arguing that they are all functionally equivalent in that they facilitate quick realizations for secured creditors by bypassing traditional restructuring processes. This analysis suggests that pre‐packs may give too much control over the restructuring process to secured creditors, encouraging rent‐seeking and other value‐destructive behaviours that undermine the fundamental goals of insolvency law. Copyright © 2017 INSOL International and John Wiley & Sons, Ltd.     

Comparative Analysis of the Informal Pre‐Insolvency Procedures of the UK and France

The aim of this paper is to provide a brief overview of the informal pre‐insolvency proceedings available in the UK and France. In addition, the aim is to provide a comparative analysis of the approach taken towards corporate rescue at this early stage by the ‘key players’ in insolvency. In particular, emphasis will be placed on the role of insolvency practitioners and creditors as well as the involvement of the courts in pre‐insolvency restructurings. Finally, the paper considers the effectiveness of the pre‐insolvency mechanisms available in the two jurisdictions and assesses whether or not these promote and encourage a corporate rescue culture. Copyright © 2016 INSOL International and John Wiley & Sons, Ltd. Copyright © 2016 INSOL International and John Wiley & Sons, Ltd     

A Comparative Analysis of Anglo‐Australian Pre‐packs: Can the Means Be Made to Justify the Ends?

Whereas pre‐packaged administrations have been prevalent in the UK for years, Australia's voluntary administration regime has been more restrictive of the practice. This article analyses the evolution of UK pre‐packs, why UK‐style pre‐packs are not prevalent in Australia and the challenges for UK and Australian lawmakers in striking the right balance with pre‐packs in their respective administration regimes. Building upon this analysis, the article proposes a mechanism that might make ‘connected‐party’ pre‐pack business sales work more fairly for stakeholders—that is, by obligating a connected‐party purchaser to make a future‐income contribution in favour of the insolvent company whose business has been ‘rescued’ by a pre‐packaged sale in administration. Copyright © 2012 INSOL International and John Wiley & Sons, Ltd.     

‘The Re Tea Corporation principle and junior creditors’ rights to participate in a scheme of arrangement – a view from Singapore'

This paper examines the application of the principle derived from Re Tea Corporation's case in recent schemes of arrangement to break negotiation deadlocks between senior and junior creditors of a financially distressed company. This paper argues against an overly technical application of the principle in Re Tea Corporation's case which might work injustice towards junior creditors by effectively shutting them out of a restructuring. This paper further explores how the holdout problem, which led to the formulation of the Re Tea Corporation principle in the first place, could be addressed while balancing the competing interests of junior claimants in a scheme of arrangement. Copyright © 2011 John Wiley & Sons, Ltd.     

The Predicament of Bank Creditors in Chinese Bankruptcy and the Way Out

Although Chinese banks are the major creditors for companies in China, their role in bankruptcy is often neglected. Even if this may be justified in the past, as banks did not assume an important role, it is not the case now as banks have become more proactive in the bankruptcy procedure and begin to conduct debt‐for‐equity swaps under the initiative of the government. This article considers the role of Chinese banks in bankruptcy both in and out of formal bankruptcy procedure. It argues that based on the reality of the country, especially its corporate governance structure, bank intervention is feasible for corporate rescues in China. The debt‐for‐equity swap scheme could be the start. Copyright © 2018 INSOL International and John Wiley & Sons, Ltd.     

The UNCITRAL Model Law on Cross‐border Insolvency and the Rule of Law

The rule of law is a concept that was often considered in the context of national legal systems. However, it is now commonly being promoted as significant in the transnational context. This paper addresses its importance within the transnational economic and commercial context, in particular in response to cross‐border insolvencies. It examines how the UNCITRAL Model Law on Cross‐border Insolvency and its Guide to Enactment and Interpretation promote key tenets of the rule of law in transnational disputes arising out of businesses in financial distress. In particular, some examples are provided of cases from the Asia‐Pacific region in which the Model Law has been applied to demonstrate how the rule of law may be promoted in an insolvency context. Finally, the paper concludes that the adoption of the UNCITRAL Model Law on Cross‐border Insolvency promotes transparency, accountability and predictability, which in turn support stability in financial systems and credit relationships and thus trade within a global market. This is a direct result of adherence to elements of the rule of law principle. Copyright © 2016 INSOL International and John Wiley & Sons, Ltd. Copyright © 2016 INSOL International and John Wiley & Sons, Ltd     

Proposal to Formulate “Global Informal Workout Rules” Adopting “Asian Bankers' Association Informal Workout Guidelines” and “Model Agreement to Promote Company Restructuring by Informal Workout” with Some Minor Amendments

The INSOL 8 Principles is a set of model domestic rules for out‐of‐court workouts. Many Asian countries have created workout rules referring to the Principles. A uniform insolvency code applicable worldwide may be impossible to achieve. Instead, international professional associations such as the INSOL International and/or official international organizations such as the World Bank may be able to establish global informal workout rules that are applicable in cases to restructure multinational business enterprises that are indebted to multinational financial creditors. The “Asian Bankers' Association Informal Workout Guidelines” and the “Model Agreement to Promote Company Restructuring by Informal Workout” of 2005 are buried treasure tools. They could be transformed to global rules with some minor amendments with the consent of the Association. Copyright © 2013 INSOL International and John Wiley & Sons, Ltd     

Tripping the Light Fantastic: A Comparative Analysis of the European Commission's Proposals for New and Interim Financing of Insolvent Businesses

The European Commission published a Draft Directive in November 2016, with the aim of ensuring that all Member States have in place an effective mechanism for dealing with viable, but financially distressed, businesses. The Draft Directive includes provisions designed to encourage financing for the debtor company, both interim financing to ‘keep the lights on’ for a brief period while the debtor negotiates with its creditors for a resolution to its financial distress, and, where possible, to finance implementation of a restructuring plan, called ‘new financing’ in the Draft Directive. Creating such a financing regime is a complex and difficult issue, as the law's intervention in this area often involves constraints on the rights of existing creditors, requiring that a careful balance is maintained between existing creditors' rights and the rights of the interim financier. This article examines the underlying policy rationale and benefits of having new and interim financing available to financially distressed debtor companies and discusses the risks involved. It examines the EU Commission's proposals in light of the experience of jurisdictions that have already tackled these issues, notably the USA and Canada, or have developed a market‐based solution to this problem, such as the UK. While the European Commission's wish to include such measures in its restructuring proposals is laudable, the measures as drafted raise concerns, particularly regarding risks associated with priority for the grantors of such finance. The authors suggest that there are four fundamental aspects of such financing on which the Directive could give guidance to Member States, namely, effective notice to pre‐filing creditors, thresholds for the debtor to qualify, a menu of relevant criteria to balance benefit and prejudice, and a role for the court in resolving disputes, ensuring fairness to stakeholders, and serving as an accountability check on interim financing arrangements, all aimed at maintaining the integrity of the insolvency process. Copyright © 2018 INSOL International and John Wiley & Sons, Ltd.     

UK Cross‐Border Cooperation: Extending Rescue to Jersey Debtors on a ‘Passporting’ Basis

This article looks at the scope of using, via the Letter of Request method, the insolvency laws of another jurisdiction in circumstances where the laws of the requesting jurisdiction do not adequately cater for the type of proceeding required. Copyright © 2013 INSOL International and John Wiley & Sons, Ltd.     

Groups of Companies in Insolvency: A German Perspective

Based on an analysis concerning the disadvantages of the previous understanding of handling groups of companies by means of consolidation of jurisdiction, the following article illustrates the basic idea of group‐specialized proceedings (konzernspezifisches Sachwalterverfahren), avoiding ‘domino effects’ and thereby unnecessary insolvencies of profitable subsidiaries and preserving the assets of these parts of the group to a greater extent than an insolvency situation can. Copyright © 2013 INSOL International and John Wiley & Sons, Ltd     

Role of Insolvency Practitioners in the UK Pre‐pack Administrations: Challenges and Control

The pre‐pack administrations (‘pre‐packs’) in the UK have repeatedly been criticised for allowing the exploitation of certain types of unsecured creditors. In this context, the role of the administrators (who are qualified insolvency practitioners) is one of the key elements. This article examines the new challenges brought by the pre‐pack strategy to the conventional role of insolvency practitioners as the administrators. It suggests that the pre‐determination nature of pre‐packs is likely to make the administration proceedings less manager‐displacing in practice than the formal rules would suggest. Although this tendency can be expected to facilitate information gathering during the rescue negotiations, it raises urgent questions with respect to the potential alignment of interests between the inside players that may impair the impartiality of the administrators. In response to such challenges, the article argues that, in spite of the recent proposals of introducing drastic statutory regulation to control the controversy of the pre‐pack practice, a proportionate way is to see how the existing control mechanisms can contribute more in reinforcing the independence of administrators. Copyright © 2012 John Wiley & Sons, Ltd.     

Perspectives on the South African Responsible Lending Regime and the Duty to Conduct Pre‐agreement Assessment as a Responsible Lending Practice

In the 2001 INSOL International Consumer Debt Report: Report of Findings and Recommendations, the view was held that the solution to overspending and over‐indebtedness is inter alia to be found in the idea that prevention is better than cure. Ex ante responsible lending practices as preventative measures to avoid reckless credit granting and over‐indebtedness are arguably more important tools in establishing a healthy credit market than ex post measures. The focus of this contribution, is therefore, to provide a detailed overview of the South African reckless credit regime as a debt‐ prevention measure aimed at promoting responsible lending, with specific focus on the aspect of pre‐agreement assessment as a core mechanism to avoid reckless credit granting and over‐indebtedness. The main features of the reckless credit regime are highlighted, and afterwards, a detailed exposition of the evolution and extensive recent development of the pre‐agreement assessment component in South Africa is undertaken. Finally, observations are made regarding the South African reckless regime in general and with regard to affordability assessment specifically and its ability, benchmarked against the essential features of a responsible lending regime as advocated by Wilson in the book ‘International responses to issues of credit and over‐indebtedness in the wake of crisis’, to promote responsible lending. The conclusion is reached that benchmarked against the four characteristics of an effective responsible lending regime as identified by Wilson, it is apparent that the South African reckless lending regime is no ‘toothless tiger’, and that it attaches the necessary amount of significance to the credit provider's duty to take reasonable steps to do a proper pre‐agreement assessment in order to avoid reckless credit granting. Copyright © 2015 INSOL International and John Wiley & Sons, Ltd.     

Reconsidering Procedural Consolidation for Multinational Corporate Groups in the Context of the Recast European Insolvency Regulation

Procedural consolidation, as a solution to the rescue of insolvent multinational corporate groups (‘MCGs’), is said to be able to preserve group value for creditors. This article explores the desirability of procedural consolidation in the EU in the light of theories of corporate rescue law, cross‐border insolvency law, multinational enterprises and relevant EU cases with reference to the European Insolvency Regulation. It argues that, based on current cross‐border insolvency rules in the EU, there is an inherent difficulty for procedural consolidation in balancing the goal of preservation of group value and the goal of certainty. The article also considers the new ‘group procedural coordination proceedings’ offered by the Recast European Insolvency Regulation and argues that it may help to supplement the gap left by the procedural consolidation in the EU. Copyright © 2017 INSOL International and John Wiley & Sons, Ltd.     

Is the Unequal Treatment of Debtors in Natural Person Insolvency Law Justifiable?: A South African Exposition

The South African natural person insolvency system has remained largely creditor‐orientated and excludes many honest but unfortunate debtors from its ambit. This is despite the worldwide trend to accommodate all such debtors. Although the system does provide for three different statutory natural person debt relief procedures, the cumulative effect of these measures' entry requirements results in differentiation on financial grounds. This is as all statutory measures require the debtor to have some form of disposable assets or income available – thereby drawing a distinction between those debtors with and those without assets and or income (the so‐called no income no asset debtors). The main aim of this article is to measure the South African natural person insolvency system against the right to equality in terms of both the South African Constitution and the Promotion of Equality and Prevention of Unfair Discrimination Act. The article may benefit legislatures and policymakers in constitutional jurisdictions that subscribe to the equality principle and that directly or indirectly exclude some debtors from debt relief while providing others therewith. Copyright © 2016 INSOL International and John Wiley & Sons, Ltd.     

Recognition of Debt Restructuring and Resolution Measures under the European Union Regulatory Framework

Under the proposed Bank Recovery and Resolution Directive (BRRD), member states will be required to provide for bail‐in powers to restructure failing financial institutions. At this moment, the Dutch, French, UK and German legislator already provide public authorities with resolution powers. In order to be effective in debt restructuring of failing (non‐)financial institutions, the measures taken by the resolution authorities need to be enforceable (before all courts) and effective in the entire European Union. Given the fact that not all the firm's debt is issued in the home jurisdiction, the question of recognition is critically important. In regard of non‐financial firms, the Dutch, UK, French and German jurisdictions provide for court proceedings to impose a collective settlement reached by the debtor and the majority of its creditors binding on the opposing minority. Out‐of‐insolvency plans approved by the court are recognised under the Brussels I Regulation. If the EU Insolvency Regulation reform proposal is adopted, these court‐approved debt restructuring plans in insolvency situations will be subject to the recognition regime of this regulation. Credit institutions, insurance undertakings, investment undertakings holding funds or securities for third parties and collective investment undertakings are excluded from the scope of the Insolvency Regulation whereas the scope of application of the Reorganisation and Winding Up Directive is limited to credit institutions. The regime under the future BRRD and the Single Resolution Mechanism is limited to credit institutions. National (private international) law determines the recognition of resolution measures taken by the authorities of another member state. Copyright © 2014 INSOL International and John Wiley & Sons, Ltd     

The Crisis of Companies from an Italian Perspective: Reorganization and Fresh Money

Today, the role of fresh money in the reorganization of companies is a central matter in the Italian crisis law. The analysis comes from the recent reforms of the Italian Bankruptcy Law, aimed at revitalizing the pre‐insolvency procedures for overcoming the crisis of companies. These reforms draw inspiration from Chapter 11 of the U.S. Bankruptcy Code. In particular, three new rules have been introduced in the Italian Bankruptcy Law in order to facilitate the obtaining of credit by companies in crisis. These rules recognize priority in reimbursement for claims related to financing. Their target is to incentivize those (not only banks) who want to grant new finance to enterprises in crisis. The target is so important for the legislator that the rules permit the discrimination of companies' creditors on the basis of a judicial valuation of the conditions required for priority by the law in specific cases. The traditional and important principle of equal treatment of unsecured creditors is even more neglected. But the specific meaning of the rules and their inclusion in a sort of company crisis law in time of crisis induce to confine the forms of credit to which the rules refer to and to limit the space for extensive interpretations or applications by analogy. Copyright © 2016 INSOL International and John Wiley & Sons, Ltd.     

Appointing and Remunerating Insolvency Practitioners in Japan: The Roles of Japanese Courts

Japanese courts play an important role in appointing and remunerating insolvency practitioners. This article examines the roles of courts on the basis of academic and practitioner literature, judicial decisions and interviews with practitioners and former and current judicial officers. First, the article focuses on the methods used to appoint practitioners and the evolution of the system at the Tokyo District Court, Japan's busiest insolvency jurisdiction. Second, the article examines the courts' roles in reviewing and setting practitioners' remuneration through another case study from the Tokyo District Court. Practices trialled and developed in Tokyo are often adapted for local purposes around Japan. The article argues that the courts' involvement has helped to keep the cost of resolving corporate insolvency in Japan down. The review and setting of remuneration deserves particular attention with the increasing prevalence of pre‐packaged and informal restructuring that prima facie appears to allow for greater freedom to set remuneration as between the practitioner and debtor‐client. The article uses a case study to demonstrate that pre‐packaged restructuring is still influenced by the court, however, arguing that the relationship between the court and practitioners remains important. Finally, the article suggests that changes in Japanese insolvency practice and external factors may require the courts and the profession to revisit approaches to appointing and remunerating practitioners. Copyright © 2017 INSOL International and John Wiley & Sons, Ltd.     

Harmonising European Insolvency Law: The Emerging Role of Stakeholders

In recent years, the European Commission has given increased room for stakeholder involvement in the area of insolvency and restructuring. In revising the European Insolvency Regulation in 2012–2015 and preparing the proposal for a directive on preventive restructuring frameworks 2016, the role and direct influence of stakeholders has been noteworthy. In these efforts, the Commission touched upon a field of law characterised by diverse stakeholders with strongly opposing interests. Following the active involvement of all stakeholders by the Commission, this study examines what relevant stakeholders are, what their positions are with respect to European Union insolvency legislation and what their role has been and can be in legislative processes in the area of insolvency and restructuring. Copyright © 2018 INSOL International and John Wiley & Sons, Ltd.     

The Extra‐Territoriality of the Statutory Stay in an English Administration

This article considers the extra‐territorial scope of the stay imposed in an English administration and argues that it should be treated by the English courts as applying without territorial limitation but that the courts should nonetheless grant leave to proceed in other jurisdictions in any case where there is no sufficient connection with England. It argues that this solution would be right in principle and that the court is not constrained from adopting such an approach by precedent. Copyright © 2014 INSOL International and John Wiley & Sons, Ltd     

Modelling as a Tool for Cross‐border Analysis of the Position of Insolvency Office Holders

This paper presents a framework and a model applied to make a cross‐border analysis of the position of Insolvency Office Holders. Both the framework and the model were developed in the course of an assignment to design Principles and Best Practices for Insolvency Office Holders for INSOL Europe. The framework is developed by induction from a variety of sources of rules and regulations regarding Insolvency Office Holders, while the model subsequently has been derived by deduction from the framework. Finally, the paper shows how this method assisted in determining the issues to be covered by Principles and Best Practices. The authors argue that commencing international legal comparison with abstract reasoning and modelling may lessen the effect of researcher's academic or professional blind spots and cultural bias and has the potential to enhance the value of cross‐border analysis in terms of coherence, consistency and completeness. Copyright © 2016 INSOL International and John Wiley & Sons, Ltd