Restructuring Global Insight - Secured creditors, new pre-insolvency restructuring regime, and more 

Restructuring e-Newsletter - Global Insight Series

Welcome to the 22nd edition of DLA Piper's Restructuring Global Insight and the final one of 2017.

This Christmas edition starts with some noteworthy points for secured creditors operating in a global market. First, we look at a recent amendment to Rule 3002 of the US Federal Rules of Bankruptcy Procedure, which now require secured creditors to file a proof of claim in order for their claim to be allowed. Previously, only unsecured creditors and equity security holders were required to do this. Joshua Morse discusses this change, and others, in more detail.

Moving across to Europe, Connie van Niekerk provides a summary of the Netherlands' latest draft bill setting out proposals for a new, pre-insolvency restructuring regime. The procedure, sometimes described as the "Dutch scheme of arrangement" draws on elements of both the UK scheme of arrangement and the US Chapter 11 procedure. It provides a mechanism for cross-class cram down within the constraints of measures to protect creditors from being in a worse position than would be the case, if the company were to enter a bankruptcy process.

In England, Chris Roberts and Grace Imafidon turn their attention to the position of unsecured creditors. They provide a case study showcasing steps that can be taken to influence the appointment of liquidators and to maximise returns from an insolvent estate.

And finally, we move to Australia where Amelia Kelly and Jeremy Yam discuss proposed reforms to curb 'phoenixing' activity. The most recent reforms to Australian insolvency laws provided various measures to protect directors and encourage responsible entrepreneurism. In contrast, the latest proposals seek to prevent errant activity and in particular the transfer of assets to a new company, specifically so that the transferor can be liquidated and creditors left unpaid.

We hope you enjoy reading these pieces as well as those published in previous editions this year. It has been a turbulent yet interesting year and it has been great to hear about our team's experiences around the globe. This publication allows us to gain a global insight into the latest restructuring news and we are very grateful for the time our colleagues take to share their insight with us all.

We shall be in touch again with the 23rd edition of Global Insight in the new year. Until then, we wish you all a very merry Christmas and a prosperous 2018.

In this issue

  • Beware secured creditors: The newly amended US Federal Rules of Bankruptcy Procedure now require filing a proof of claim
    21 DEC 2017
    Restructuring e-Newsletter - Global Insight Series

    Certain amendments to the Federal Rules of Bankruptcy Procedure, which became effective on December 1, 2017, impose affirmative obligations on secured creditors to protect the right to distribution in a bankruptcy case. Specifically, Rule 3002(a) now requires a secured creditor to file a proof of claim in order to gain allowance for a secured claim.

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  • Dutch Government's proposals for the introduction of a binding, pre-insolvency composition - the "Dutch Scheme"
    21 DEC 2017
    Restructuring e-Newsletter - Global Insight Series

    In September a draft bill was published for public consultation, pursuant to which a district court may be asked to confirm a restructuring plan between a company and its creditors and shareholders concerning the rescheduling and restructuring of debts to prevent bankruptcy. Confirmation from the district court results in the restructuring plan not only binding the creditors and shareholders involved, but also creditors and/or shareholders that have not voted in favour of the composition.

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  • Maximizing returns from a UK liquidation
    21 DEC 2017
    Restructuring e-Newsletter - Global Insight Series

    When a company enters into an insolvency process in the UK, the position of unsecured creditors is typically one of uncertainty. Ranking fifth in the insolvency payment waterfall, unsecured creditors frequently find themselves out of the money. Even in cases where there are sufficient realizations to make a distribution to unsecured creditors, they may receive only a minimal amount in respect of their outstanding debts.

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  • Australia: phoenixing reform rising beyond the safe harbour
    21 DEC 2017
    Restructuring e-Newsletter - Global Insight Series

    Australian insolvency law reform is gaining momentum. In September 2017, we saw the Treasury Laws Amendment (2017 Enterprise Incentives No. 2) Bill 2017 receive royal assent, introducing a new safe harbour for directors who pursue legitimate restructuring efforts. Reforms to ipso facto provisions were also introduced and are due to take effect from July 1, 2018.

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