Insolvency & Restructuring updates

European Union

European Commission proposes directive on preventive restructuring frameworks
  • European Union
  • 16 March 2018

The European Commission has proposed a directive on preventive restructuring frameworks in order to reduce significant barriers to the free flow of capital caused by differences in member states' restructuring and insolvency frameworks. It aims for all member states to implement key principles for effective preventive restructuring and second-chance frameworks, as well as measures to improve the quality and efficiency of all types of insolvency procedure by reducing their length and associated costs.


Finland

Contributed by HPP Attorneys Ltd
Bankruptcy estate liability for mutual real estate company's maintenance charges
  • Finland
  • 19 April 2019

The Eastern Finland Court of Appeal recently ruled on a bankruptcy estate's liability for a mutual real estate company's maintenance charges. This decision further defines the scope of bankruptcy estates' liabilities and is a logical continuation of Supreme Court precedent in this area. As payments of bankruptcy estates' administrative expenses are privileged compared with claims against debtors, the definition of 'administrative expenses' should be interpreted cautiously.

Security value of floating charge in restructuring – latest precedent
  • Finland
  • 30 November 2018

In January 2015 two Supreme Court precedents indicated that assets subject to floating charges should be valued at their feasible liquidation value; however, under these precedents, the valuation terms were somewhat ambiguous and certain liquidation costs remained undetermined. The court's latest precedent addresses the equal treatment of creditors in both restructuring and bankruptcy proceedings and clearly improves the predictability of floating charges as securities in the former.

New report on bankruptcy proceedings and environmental liabilities
  • Finland
  • 06 July 2018

Generally, Finnish insolvency legislation has been stable and proven effective over the past decade. However, owing to technological advancements and recent bankruptcies involving businesses affecting the environment, there is a growing need to fine-tune bankruptcy proceedings and environmental liabilities in bankruptcies. After two years of research, an expert group established by the Ministry of Justice has published a report on these issues.

Differing tax issues between bankruptcy estate and creditors
  • Finland
  • 16 March 2018

The tax issues of a bankruptcy estate and the creditors differ depending on whether the bankruptcy estate continues the previous business of the debtor company. The effects of a debtor's bankruptcy on the creditor's taxation may be particularly significant where the creditor is a lessor to the debtor. Pursuant to legislation, a bankruptcy estate is, in principle, entitled to choose whether to conduct activity liable to value added tax provided that it does not continue the debtor's business.

Amendment of restructuring programme – unclear and unknown debts
  • Finland
  • 23 December 2016

A court-approved restructuring programme can be amended only if the preconditions of the Restructuring of Enterprises Act are met. Generally, the contents of an approved programme may be amended with the acceptance of all the creditors whose rights would be violated by an amendment. However, the precondition of the debtors' acceptance is problematic when the amount of a restructuring debt is determined to be substantially more than that originally entered into the restructuring programme.


Germany

Berlin to Korneuburg: NIKI's insolvency proceedings
  • Germany
  • 25 May 2018

Charlottenburg Local Court ordered insolvency proceedings for safeguarding NIKI Luftfahrt, a company incorporated under Austrian law with its registered office in Vienna. At the time, its indirect shareholder, Air Berlin (with its registered office in Berlin), had already commenced proceedings in Germany. While Charlottenburg Local Court was satisfied that NIKI's centre of main interest was in Berlin, the Berlin Court of Appeal decided that it had been wrong to assume jurisdiction.

Increased liability for managing directors – bow wave theory rejected by court
  • Germany
  • 23 February 2018

German regulations obliging managing directors to monitor the liquidity of a company during crisis situations are typically strict and give rise to the risk of personal liability in cases of non-compliance. Legislation requires company management to file for insolvency proceedings without undue delay in the case of illiquidity or over-indebtedness. Continued trading where the company is considered to be materially insolvent can have serious consequences.

Restructuring Order applies only where binding ruling exists
  • Germany
  • 15 December 2017

On February 9 2017 the Great Senate of the Federal Fiscal Court published a decision stating that the Restructuring Order was illegal. On June 27 2017 the legislature introduced new legislation which provides that the tax authorities may waive taxes or assess taxes at a lower level. However, the new legislation can be applied only where creditors have waived their claims after February 8 2017.

Liability claims against managing directors
  • Germany
  • 06 October 2017

In order to maintain an insolvency estate and achieve the utmost satisfaction of all creditors, German legislation has ratified various liability claims against managing directors for payments made after their company has become illiquid or been deemed to be overindebted. However, according to recent case law, one thing that all of these claims have in common is that managing directors cannot be held liable for payments made that result in an equivalent compensation for the company.


Guernsey

Royal Court issues letter of request to High Court
  • Guernsey
  • 11 January 2019

Two joint administrators recently applied to the Royal Court of Guernsey seeking an order that it issue the High Court of Justice of England and Wales with a letter of request to act in aid of and auxiliary to the Royal Court in recognising their appointment as administrators of a company. While the Royal Court has dealt with incoming letters of requests, in making the application, counsel was unaware of any case where the Royal Court's jurisdiction to issue a letter of request had previously been considered.


India

Status of 'other' creditors under Insolvency and Bankruptcy Code 2016
  • India
  • 08 September 2017

The Reserve Bank of India recently directed several banks to start insolvency resolution proceedings against a list of identified companies, including Jaypee Infratech Limited, a leading real estate development company. The case has highlighted the need for the Insolvency and Bankruptcy Code 2016 to recognise a wider class of creditors that can initiate an insolvency proceeding and participate meaningfully in such process. It has also emphasised the important role that financial creditors play.