Insolvency and Secured Transactions
Meet the Co-chairs - TAGLAW
Conner & Winters, LLP
Dykema Cox Smith
Insolvency and Secured Transactions
On 22 December 2016 the last changes in the Commerce act were adopted. Among them are also the amendments of the bankruptcy proceedings legislation and the creation of completely new proceedings –business stabilization proceedings. One of the purposes of these changes is to catch up with the prevailing in the last years tendencies at a transnational level within the European Union, for guaranteeing the existence of procedures, which can ensure the possibility for undertakings to stabilize, and also for conducting efficient bankruptcy proceedings, which can result in providing fair satisfaction of creditors‘ .
The Resolution, adopted by the European Parliament on 15 November 2011, refers clearly to the need of harmonization of the legislation of the Member States in the field of the bankruptcy and it also indicates the guidelines of the necessary changes, which have to affect the initiation of the bankruptcy proceedings, the presentment of claims, the rules for the revocatory actions, etc. Different guidelines for creating plans for restructuring of the undertakings, the effect and the content of these plans are also adduced in the Resolution.
Due to present political and economic circumstances in Brazil, the number of judicial reorganisation requests has considerably increased in the past few years. As a result, courts have been tested on a number of issues and new legal interpretations have been adopted. Specifically, recent court rulings have determined that provisions under financing agreements setting forth the acceleration of outstanding debt as a consequence of judicial reorganisation filings by debtors would contradict a legal purpose of protecting the debtor’s going concern, and would thus be null and void. In this scenario, the article contains an analysis of the legal validity and effectiveness of debt acceleration contractual provisions in Brazil, particularly vis-à-vis the referred recent court rulings and their potential adverse impact on credit supply and risk management.
Contact: Fatih Isik
As per the state of emergency declared in the Republic of Turkey on July 20th, 2016, and under Article 4 of Decree Law numbered 669 and dated 31.07.2016, corporations are prohibited from requesting, and the courts are prohibited to rule upon, suspension of bankruptcy. Through this prohibition, yet another opportunity, namely, the concordat, has again come into effect. The meaning of the word ‘concordat’, is a restructuring option for debtors in a poor financial situation, but one that has been rarely applied due to the advantages of suspension of bankruptcy.
There is a lot of press coverage about the Hanjin bankruptcy, but very little of it provides tangible facts for traders to rely on. One thing we know for sure is Hanjin filed a Chapter 15 bankruptcy in the U.S. What that means is the U.S. bankruptcy court will defer to the Korean bankruptcy court regarding how the case will proceed. The U.S. court will limit its orders to cargo in the U.S. or touching the U.S. Most importantly right now, if you think you have a claim against Hanjin, you need to file that claim in the Korean bankruptcy proceeding, and you must do that between October 11 and 25, 2016. If you miss that claim deadline, you will be out of luck. There are a handful of Korean lawyers representing the interests of cargo owners and other potential claimants in Korea and they should be contacted immediately. Referrals are available.
Beside this one fact, there are a lot of pending questions...
When a corporation has spent all its equity through the accumulation of losses, thus showing a negative equity in its balance sheet, Section 225 (1) of the Business Enterprise Code (UGB) prescribes that its management must explain in the notes to the annual accounts whether the debt level is high enough to be of relevance under insolvency law. This would be the case if a negative continuity forecast were added to the debts on the books.