Cross Border Restructuring and Insolvency Update - April 2017

In the matter of the désastres of Gail Alison Cochrane and Orb a.r.l.

1. Harbour Fund II LP v. (1) Orb a.r.l. (2) Litigation Capital Funding [2017]JRC171 ("the September judgment")

2. Harbour Fund II LP v. (1) Orb a.r.l. (2) Dr Gail Cochrane [2017]JRC007 ("the January judgment")

3. Representation of the Viscount re Cochrane and Orb a.r.l. [2017]JRC025 ("the February judgment")

The high profile cross border insolvency of Orb a.r.l. ("Orb") has been the subject of three linked judgments from the Royal Court in Jersey. These judgments have supplied some additional light on the use of English Administration in Jersey and the use of Letters of Request by the crown dependencies.

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Re. Arck Estrella Limited, Representation of Rendle and Butcher [2017]JRC004 and [2017]JRC042

English Liquidators of a fraudulent investment company were able to navigate a complex web of defunct companies and trusts to realise assets in a Jersey company.

The partners of Arck LLP (in Liquidation), registered in England ("Arck"), an investment firm, were convicted of fraud and forgery. Richard Clay, thought to be the driving force of the scandal, is now serving a 10 years 10 months prison sentence and his deputy Kathryn Clark received a two year suspended sentence.

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Short stories

Australian Draft Insolvency Law

The Australian government has released a revised draft of new insolvency legislation in the form of the Treasury Laws Amendment (2017 Enterprise Incentives No. 2) Bill 2017. The Bill contains safe harbour provisions where a director has taken a course of action reasonably likely to lead to a better outcome for company and its creditors. Where currently directors of insolvent companies can be held personally liable by a Liquidator for debts incurred while the company is insolvent, the draft legislation would shield directors from civil liability for debts as well as encouraging directors to keep control of their company, engage early with possible insolvency, and take reasonable risks to facilitate the company’s recovery instead of simply placing the company prematurely into voluntary administration or liquidation.

The Bill will also make ipso facto clauses which would allow contracts to be terminated solely due to an insolvency event unenforceable if a company is undertaking a restructure.

Singapore, Delaware, and New York Courts Adopt Cross-Border Insolvency Cooperation Guidelines

Courts in Singapore, New York and Delaware have formally implemented Guidelines for Communication and Cooperation between Courts in Cross-border Insolvency Matters. The Guidelines were developed by judges from several jurisdictions, including Australia, Bermuda, the British Virgin Islands, Canada, the Cayman Islands, England and Wales, Singapore, and the United States, who participated in discussions at a meeting of the Judicial Insolvency Network in Singapore in October 2016. The stated purpose of the Guidelines is "to improve the efficiency and effectiveness of cross-border insolvency proceedings and to enhance coordination and cooperation among courts under whose supervision such proceedings are being conducted." Their objective is to improve efficiency in complex cases, which will benefit all stakeholders by minimising litigation, time, and expense.

New Insolvency (England and Wales) Rules 2016

The Insolvency (England and Wales) Rules 2016 came into force on 6 April 2017, replacing the Insolvency Rules 1986. We have drafted a series of daily updates covering the new rules which can be accessed via our website here or on our Twitter account where they are updated daily.

This update was jointly written by Alan Bennett, and Olivia Reader.

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