Cross Border Restructuring and Insolvency Update - March 2016

Europa Plus SCA SIF v Anthracite Investments (Ireland) Plc [2016] EWHC 437 (Comm)

The Court interpreted the terms of a Termination Agreement and found that the Applicant, Europa, was entitled to €1.3 million from the Defendant, AII, in relation to funds invested on Europa's behalf, which had been paid out and held by AII. As a matter of construction, it could not have been intended that AII should be left with sums owing to an investor following a Termination Agreement.

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In re Creative Finance Ltd. (In Liquidation), No. 14-10358, 2016 WL 156299 (Bankr. S.D.N.Y. Jan. 13, 2016)

The US Bankruptcy Court for the Southern District of New York has dismissed a case filed under Chapter 15 of the US Bankruptcy Code as the debtor's centre of main interest ("COMI") was not in the jurisdiction where the initial Liquidation was filed.

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Short stories

Impending reform to German clawback regime

On February 24 2016, the legal committee of the German government met to discuss the limitation of the current German clawback regime. It is envisaged that the deadline for clawbacks shall be shortened from 10 to 4 years prior to insolvency. Following on from similar legislative hearings last year, various representative experts gathered to finalise the proposed reforms. The general consensus from the experts appears to be that existing clawback laws should be considerably limited and that current reform suggestions may only require some minor alterations. It is likely that following this hearing the reforms will be enacted in the near future.

European Commission legislative proposal

The European Commission has published an Inception Impact Assessment, indicating that it intends to present a legislative proposal by the end of 2016 as an insolvency initiative to set common standards for restructuring and insolvency laws across the EU. The Inception Assessment contains a preliminary set of issues, assessments and options for consideration, as well as standard warnings that these may be subject to change and does not prejudge the final decision of the Commission on whether the initiative will be pursued. The Commission intends to launch an open public consultation in the first half of 2016.

UK Court ruled Administrators not entitled to fees from misselling redress payment

A company's former Administrators sought an order under the Insolvency Act 1986 that their remuneration and expenses should be payable out of a sum owed to the company from Natwest in relation to interest rate swaps. After the swaps terminated, the company granted a fixed charge and debenture over its assets to a third party. Administrators were appointed and recorded costs of over £164,000 before the company was dissolved. Following a review, Natwest later concluded that the company might be entitled to redress of £62,646 in respect of the possible misselling of the swaps. The former Administrators submitted that any redress payment should be made to them. The court refused the Administrators' application, finding that it had no jurisdiction to order that the redress be paid to themselves, nor did it have power to administer the FCA scheme. The payment was not an asset and could not be subject to the relevant charge. The court recommended that an application be made for the company to be restored and wound up so that a Liquidator may pursue the redress payment and make a distribution having considered all the associated issues. HHJ Cooke stated that given the potential for conflict, it would seem inappropriate that the Administrators themselves should act as Liquidators.

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

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