Cross Border Restructuring and Insolvency Update - 27 July 2017

Pearson v. Primeo Fund (Cayman Islands) [2017] UKPC 19

The Privy Council sitting as the final court of appeal for the Cayman Islands recently considered a case concerning prioritisation in a Liquidation between feeder hedge funds where the investment medium was redeemable shares.


The appellant in this case was the Liquidator of Herald Fund SPC ("Herald"). Herald is a Cayman Islands registered hedge fund that invested heavily into Bernard L Madoff Investment Securities LLC, the historic Ponzi scheme run by Bernard Madoff that collapsed spectacularly in 2008.

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FNV v Smallsteps

In this Dutch case, the European Court of Justice has ruled that in a 'pre-pack' Administration, the employees transferred in accordance with TUPE regulations.

Prior to its insolvency, Estro Groep was the largest childcare company in the Netherlands, with almost 380 childcare centres and approximately 3,600 employees.

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Short stories

Austria: Austria's parliament passes new legislation for personal bankruptcy law to improve people's financial situations

Under old law, Austrian debtors would either agree a payment plan with creditors, or where a payment plan has been declined, pay creditors a levy on their residual income following subsistence costs. If a debtor settled at least 10% of their debts over seven years, they may be discharged from remaining debts. The period for payment may also be extended a further three years for the debtor to reach such quota.

As of 1 November 2017, new amendments to the law include provisions to ease debt relief for former entrepreneurs and private individuals. The levy period has been reduced from seven years to five years and the minimum quota of 10% has been abolished. Where the debtor has little income above subsistence levels, the requirement to offer a settlement plan has also been abolished.

Greece: The new extrajudicial debt settlement procedure

As of 3 August 2017, the extrajudicial debt settlement procedure (EDS), law 4469/2017 will enable out-of-court settlement for natural persons subject to bankruptcy procedures or legal entities with an income from its business activity. This time barred and simpler procedure offers expediency, cost efficiency and lower publicity. In order to benefit, the debtor must owe an aggregate of at least €20,000 of debt, to have operated positively for at least one of the last three fiscal years prior to an EDS application, and to have had overdue loan or credit payments on 31 December 2016 for at least 90 days.

Creditors and debtors may develop a bespoke debt restructuring agreement subject to basic rules. The agreement may be ratified by the court to legally bind the creditors. However, where the agreement has been breached for at least 90 days, it may be annulled to revive creditors' remaining claims.

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