Corporate Rescue

Name: Corporate Rescue | An Overview of Recent Developments
Brand: Kluwer Law International
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An Overview of Recent Developments

Katarzyna Gromek Broc Rebecca Parry(Editor)

Kluwer Law International (Publisher)

2nd Edition

Published on 3. December 2006

430 pages

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978-90-411-5050-9 (ISBN)

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Cover
Half Title Page
Title Page
Copyright Page
Table of Contents
About the Editors and Contributors
Preface
Acknowledgements
Table of Figures
Chapter 1 Introduction
I. THE NEED FOR TAILORED, WELL-FUNCTIONING, CORPORATE RESCUE LAWS
II. COMPARATIVE LAW STUDIES BY INTERNATIONAL ORGANIZATIONS
ADDITIONAL COMPARATIVE LAW DEVELOPMENTS
III. REFORMS TO DOMESTIC INSOLVENCY PROCEDURES
DEVELOPMENTS WITHIN MATURE SYSTEMS OF CORPORATE RESCUE
IV. CONFLICT OF LAWS AGREEMENTS
V. CONCLUSION
Chapter 2 Insolvency Provisions Concerning Corporate Rescue in China
I. INTRODUCTION
II. THE DEVELOPMENT AND THE NATURE OF THE CURRENT INSOLVENCY LEGISLATION
III. CURRENT PROVISIONS ON INSOLVENCY PROCEEDINGS RELATED TO CORPORATE RESCUE
INSOLVENCY PETITION AND ACCEPTANCE
INSOLVENCY ABILITY
INSOLVENCY GROUNDS
INSOLVENCY PETITIONER
JURISDICTION
CREDITORS' MEETING
RECONCILIATION AND REORGANIZATION
Reconciliation System
Reorganization System
Defects in the Existing Reconciliation and Reorganization Systems
IV. DRAFT ENTERPRISE BANKRUPTCY LAW
BASIC FRAMEWORK
MAIN IMPROVED ASPECTS
Applicable Scope
Insolvency Grounds
Extraterritorial Effects of Insolvency Proceedings
Receiver in Insolvency
Debtor's Assets
New Rules on Enterprise Reorganization
Reconciliation
V. COMMENTS ON THE DRAFT AND ITS PROSPECTS
ON THE FINANCIAL INSTITUTION INSOLVENCY
ON THE INSOLVENCY UNDER THE GUIDANCE OF POLICIES
DRAWBACKS REGARDING REORGANIZATION
DRAWBACKS OF THE RECONCILIATION
Chapter 3 Cyprus: Present Problems and Prospects for the Future
I. INTRODUCTION
II. OVERVIEW OF THE PRESENT SITUATION
III. AN OVERVIEW OF CYPRUS COMPANY LAW
CYPRUS LAW IN GENERAL
CYPRUS'S ECONOMY
CYPRIOT COMPANY LAW
IV. THE IDEA OF 'CORPORATE RESCUE' IN CYPRUS
THE CURRENT POSITION
REASONS FOR THE LACK OF LEGISLATIVE RESCUE PROCEDURES
V. CASE STUDY: CYPRUS AIRWAYS
VI. THE FUTURE FOLLOWING ACCESSION TO THE EUROPEAN UNION
Chapter 4 England and Wales: Administration Orders
I. OVERVIEW OF THE ADMINISTRATION PROCESS AND THE 2002 REFORMS
II. ADMINISTRATION FOLLOWING THE ENTERPRISE ACT 2002
APPOINTMENT BY THE COURTS
APPOINTMENT OUT OF COURT
PURPOSE OF THE ADMINISTRATION
Scrutinizing the Purpose of the Application
ADMINISTRATOR
STATEMENT OF PROPOSALS
LIMITATIONS ON WHAT MAY BE PROPOSED
NOTIFICATION OF THE ADMINISTRATOR'S PROPOSALS
CREDITORS' MEETING
CREDITORS' COMMITTEE
CONTROL OF THE ADMINISTRATOR
TREATMENT OF EMPLOYEES
JURISDICTION
The EU Regulation on Insolvency Proceedings
UNCITRAL Model Law on Cross-Border Insolvency
ENDING ADMINISTRATION
Conversion to Winding-up or Dissolution
III. IMPACT ON LIQUIDATION
IV. THE DECLINE OF THE FIXED CHARGE OVER BOOK DEBTS
V. PROSPECTS FOR FUTURE REFORMS
VI. CONCLUSION
Chapter 5 England and Wales: The Impact of the Revised Company Voluntary Arrangement Procedure
I. INTRODUCTION
II. COMPANY VOLUNTARY ARRANGEMENTS-AN OVERVIEW
RAISON D'ÊTRE OF THE CVAS
IMPLEMENTATION PROCEDURE
APPROVAL OF THE CVA PROPOSAL BY CREDITORS' VOTE
THE CVAS AND THE COURT
III. THE INSOLVENCY ACT 2000 AND THE CVA
IMPROVED BINDING FORCE
MORATORIUM
EXEMPTIONS FROM ELIGIBILITY FOR A MORATORIUM
MORATORIUM APPLICATION PROCEDURE
ADMINISTRATIVE RECEIVERSHIP
PROTECTION AGAINST FRAUD BY DIRECTORS
ADVERTISEMENT
COMMENTS REGARDING THE INTRODUCTION OF THE MORATORIUM
IV. THE IMPACT OF THE CVA REGIME
V. COMPLEXITY OF THE 'RESCUE CULTURE'
THE BANKS'ATTITUDE TO THE 'RESCUE CULTURE'
VI. FUTURE PERSPECTIVES
VII. CONCLUSION
Chapter 6 Reforms to the Framework of Insolvency Law and Practice in France: 1996-2006
I. INTRODUCTION
II. HISTORICAL BACKGROUND
III. FINANCIAL SCANDALS AND RESPONSES: 1996-1997
IV. INTERIM MEASURES: COMMERCIAL COURTS AND INSOLVENCY PRACTICE: 1998-1999
V. THE PREPARATORY ORIENTATION DOCUMENT: 1999
VI. CONSOLIDATION OF THE COMMERCIAL CODE: 2000-2001
VII. REORIENTATION OF THE OVERALL REFORM STRATEGY: 2000-2002
VIII. REFORMS TO THE COMMERCIAL COURT: 2000-2002
MIXED BENCHES
THE POWERS OF THE PRESIDENT OF THE COMMERCIAL COURT
THE STATUS OF LAY JUDGES
RESPONSES TO THE PROPOSALS
IX. REFORMS TO THE STATUS OF INSOLVENCY PRACTITIONERS: 2000-2003
THE STATUS OF INSOLVENCY PROFESSIONALS
THE CONDUCT OF CASES
THE SUPERVISION OF PRACTICE CONDITIONS
REMUNERATION
RESPONSES TO THE PROPOSALS
X. REFORMS TO INSOLVENCY LAW: 2003-2005
DEFINITIONS AND JURISDICTION
PRE-INSOLVENCY PROCEDURES
PRESERVATION
JUDICIAL RESCUE
LIQUIDATION
SANCTIONS
XI. SUMMARY
Chapter 7 Statutory Corporate Rescue Proceedings in Germany: The Insolvenzplan Procedure
I. INTRODUCTION
II. EVOLUTION OF GERMAN INSOLVENCY LAW
III. GERMAN AND US INSOLVENCY LAW
THE US BANKRUPTCY CODE - A MODEL FOR THE NEW GERMAN INSOLVENCY PLAN PROCEDURE
MARKED DIFFERENCES BETWEEN THE TWO LAWS
IV. INSOLVENZPLAN
FILING OF THE PLAN
ASSESSMENT OF THE PLAN BY THE INSOLVENCY COURT
HEARING FOR EVALUATION AND VOTING
CONFIRMATION OF THE PLAN BY THE INSOLVENCY COURT
EXECUTION OF THE PLAN
V. PROBLEMS AFFECTING THE ACCEPTANCE AND EFFECTIVENESS OF THE INSOLVENCY PLAN PROCEDURE
TAXATION OF PROFITS RESULTING FROM RESTRUCTURING
INTERFERENCE WITH RIGHTS OF SHAREHOLDERS
SELF-ADMINISTRATION AND IMMINENT INSOLVENCY
LACK OF PROVISIONS FOR GROUP INSOLVENCIES
VI. EC REGULATION 1346/2000: SELECTED ISSUES AND GERMAN CASE LAW
VII. CONCLUSION
Chapter 8 Corporate Rescue in Greece
I. INTRODUCTION
II. LD 3562/56 ON 'PLACING COMPANIES LIMITED BY SHARES UNDER THE ADMINISTRATION AND MANAGEMENT OF CREDITORS AND PLACING UNDER SPECIAL WINDING-UP'
III. THE COMPULSORY REJUVENATION OF L1386/83 ON 'ORGANIZATION FOR ECONOMIC RECONSTRUCTION OF ENTERPRISES' (OAE), WHICH CONCERNS PUBLIC LIMITED COMPANIES UNDER THE SUPERVISION OF THE STATE
CRITICAL EVALUATION
IV. LAW 1892/90 ON 'MODERNIZATION AND DEVELOPMENT AND OTHER PROVISIONS' (ARTS 44, 45, 46, 46A)
THE CRITERIA OF ELIGIBILITY FOR THE REGIME
ARTICLE 44: FIRST STAGE
ARTICLE 45: APPOINTMENT OF THE TRUSTEE
ARTICLES 46 AND 46(A) - SPECIAL LIQUIDATION (ADMINISTRATION) OF THE COMPANY
Article 46
Article 46a
The Procedure
V. SUMMARY AND EVALUATION
Chapter 9 Hong Kong Corporate Rescue: Developments and Debate from a PRC Mainland Judge's Viewpoint
I. INTRODUCTION
II. FRAMEWORK OF PROVISIONAL SUPERVISION
III. DEBATES: GROUPS CONCERNED WITH THE PROVISIONAL SUPERVISION
PROVISIONAL SUPERVISION AND EMPLOYEES
PROVISIONAL SUPERVISION AND CREDITORS
Veto Power of the Major Secured Creditor (MSC)
Protection of Secured Creditors' Rights
Enhancing Unsecured Creditors' Confidence: The Avoidance Power of the Provisional Supervisor
PROVISIONAL SUPERVISION AND SHAREHOLDERS
IV. CONCLUSION
Chapter 10 Hungary: Pitfalls of the Current Legislation and Potential for Future Reforms
I. HISTORY
ECONOMIC TRANSITION
II. FRAMEWORK UNDER THE 1991 ACT
III. BANKRUPTCY PROCEEDINGS
BASIC STRUCTURE
PROBLEMS HAMPERING THE DEVELOPMENT OF A RESCUE CULTURE
THE PROBLEM OF PHOENIX COMPANIES
IV. THE LIQUIDATION PROCEEDING
EXAMINATION OF INSOLVENCY
TEST OF INSOLVENCY
THE NEED FOR A MORATORIUM
JURISDICTION
THE SECOND PART OF LIQUIDATION
THE COMPOSITION NEGOTIATION
REORGANIZATION BY THE LIQUIDATOR
CREDITORS' COMMITTEE
FINANCING
V. THE FUTURE
OUTLINE OF REFORM PROPOSALS
PROGRESS OF THE REFORMS
VI. CONCLUSION
Chapter 11 Insolvency Procedures in Italy
I. THE REGULATION OF LEGAL PROCEDURES PRIOR TO THE 2005 REFORM - BANKRUPTCY
II. THE PROCEDURES OF COMPOSITION WITH CREDITORS AND SUPERVISED ADMINISTRATION
III. COMPULSORY ADMINISTRATIVE LIQUIDATION AND SPECIAL ADMINISTRATION OF LARGE-SCALE ENTERPRISES
IV. EXTRAJUDICIAL SETTLEMENTS
V. CONCLUSIONS ON THE REGULATION PRIOR TO 2005
THE HISTORIC ORIGINS OF THE ADMINISTRATIVE INTERVENTION ON BUSINESS CRISES
VI. THE 2005 REFORM - NEW COMPOSITION WITH CREDITORS
VII. NEW BANKRUPTCY
VIII. CONCLUSIONS
ADAPTATION OF THE ITALIAN SYSTEM TO THE CRITERIA EXISTING ON THE PRINCIPAL LEGISLATIONS
REMAINING INDIVIDUAL ASPECTS
Chapter 12 Corporate Rescue Law in New Zealand
I. INTRODUCTION
II. BACKGROUND
STATUTORY FRAMEWORK
III. EXISTING NEW ZEALAND INSOLVENCY PROCEDURES
LIQUIDATION
RECEIVERSHIP
IV. STATUTORY MANAGEMENT
V. EXISTING CORPORATE RESCUE PROCEDURES
PART 14 COMPANIES ACT 1993
PART 15 COMPANIES ACT
VI. PROPOSED VOLUNTARY ADMINISTRATION PROCEDURE
VII. DIRECTORS' DUTIES
VIII. CROSS-BORDER INSOLVENCY
IX. VOIDABLE TRANSACTIONS
X. REGULATION OF INSOLVENCY PRACTITIONERS
Chapter 13 Bankruptcy and Recovery Law in Poland
I. INTRODUCTION
II. PREREQUISITES FOR BANKRUPTCY
III. PROCEEDINGS ON THE BANKRUPTCY DECLARATION
IV. TYPES OF BANKRUPTCY AND RECOVERY LAW PROCEEDINGS
V. BANKRUPTCY PROCEEDINGS AIMED AT COMPOSITION
VI. RECOVERY PROCEEDINGS
VII. SUPERVISORY ARRANGEMENTS
VIII. THE ROLE OF CREDITORS
IX. ADVANTAGES AND DISADVANTAGES OF RESTRUCTURING THROUGH BANKRUPTCY OR RECOVERY PROCEEDINGS (AS APPOSED TO INFORMAL, OUT-OF-COURT SOLUTIONS)
X. DIRECTORS' OBLIGATIONS
XI. THE EFFECT OF PROCEEDINGS AIMED AT COMPOSITION ON DEBT COLLECTION AND THE ENFORCEMENT OF SECURITY
XII. THE EFFECT OF BANKRUPTCY ON THE MANAGEMENT
XIII. AVOIDANCE OF ANTECEDENT TRANSACTIONS
XIV. FUNDING AND THE PRIORITY GIVEN TO 'NEW MONEY'
XV. RECOGNITION OF FOREIGN INSOLVENCY PROCEEDINGS
XVI. SUMMARY
Chapter 14 South African Corporate Rescue
I. INTRODUCTION
II. JUDICIAL MANAGEMENT
CIRCUMSTANCES IN WHICH A JUDICIAL MANAGEMENT ORDER MAY BE GRANTED
Inability to Pay Debts or Meet Obligations
Has Not Become or is Prevented from Becoming a Successful Concern
Reasonable Probability that it will be Enabled to Pay its Debts and Become a Successful Concern
If it Appears Just and Equitable
REQUIREMENTS WHERE AN APPLICATION FOR THE WINDING-UP OF THE COMPANY IS BEFORE THE COURT
Procedure
PROVISIONAL JUDICIAL MANAGEMENT ORDER
MORATORIUM
VARIATION OF THE ORDER
MEETINGS OF INTERESTED PARTIES
PROVISIONAL JUDICIAL MANAGER
Qualifications of Insolvency Practitioners
Duties
FINAL JUDICIAL MANAGEMENT ORDER
FINAL JUDICIAL MANAGER
EFFECTS ON EMPLOYEES
TERMINATION OF A JUDICIAL MANAGEMENT ORDER
III. CRITICISM OF JUDICIAL MANAGEMENT
IV. FUTURE DEVELOPMENTS IN SOUTH AFRICA
Chapter 15 The Spanish Insolvency Act: A Critical Evaluation
I. INTRODUCTION
II. THE INSOLVENCY ACT
WHO MAY FILE FOR INSOLVENCY?
KEY PLAYERS IN INSOLVENCY PROCEEDINGS
CLAWBACK AND INEFFECTIVENESS OF CERTAIN TRANSACTIONS
RANKING OF CREDITORS
SUBORDINATION OF CREDITS
TERMINATION OF THE INSOLVENCY PROCEEDINGS
INTERNATIONAL INSOLVENCIES
COMMON ISSUES
Out-of-Court Composition Agreements
Cram-Downs
III. FORUM SHOPPING IN INTERNATIONAL INSOLVENCIES
INSOLVENCY PROCEDURES INVOLVING A FOREIGN ELEMENT
FORUM SHOPPING
Chapter 16 Corporate Rescue Law in the United States
I. INTRODUCTION
II. THE PRE-1934 PERIOD
III. CORPORATE RESCUE FROM 1934 TO 1978
IV. THE CHAPTER 11 ERA (POST-1978)
CHAPTER 11 - A PRIMER
V. CORPORATE RESCUE LAW POST ENACTMENT OF THE 1978 BANKRUPTCY CODE
THE 1984 AMENDMENTS
THE 1994 AMENDMENTS
THE 2005 AMENDMENTS
Main Reforms
Small Business Debtors
OTHER REFORMS
CONFLICT OF LAWS ISSUES
VI. SIGNIFICANT SUPREME COURT CASE LAW
VII. THE APPLICATIONS OF CHAPTER 11: IS ITS CORE FUNCTION CHANGING?
VIII. CONCLUSION
Chapter 17 Cross-border Insolvency: the EC Regulation and the UNCITRAL Model Law
I. INTRODUCTION
II. THEORETICAL AND HISTORICAL PERSPECTIVES
III. EXERCISE OF JURISDICTION
COMPATIBILITY
SCOPE
CENTRE OF MAIN INTERESTS
OPENING OF SECONDARY PROCEEDINGS OR NON-MAIN PROCEEDINGS
INSOLVENCY PROCEDURES
IV. APPLICABLE LAW
V. RECOGNITION
VI. COORDINATION OF SECONDARY PROCEEDINGS
VII. CREDITORS AND LODGEMENT OF CLAIMS
VIII. CONCLUSION
Index
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Corporate Rescue

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