- Save
- Cite
-
Email this content
Share Link
Copy this link, or click below to email it to a friendEmail this contentor copy the link directly:The link was not copied. Your current browser may not support copying via this button.Link copied successfully
Sign in
- Preliminary Material
- Main Text
- Part I Corporate Debt Restructuring
- 1 Insolvency in the UK and the US
- Preliminary Material
- I The Case for a Comparative Approach
- II Directors’ Duties to Promote a Restructuring in the US
- III Directors’ Duties to Promote a Restructuring in England
- IV Avoidance Actions in the US
- A Fraudulent Conveyances
- B Preferences
- C ‘Safe Harbors’ for Certain Financial Transactions
- V Vulnerable Transactions in England
- 1.92
- 1.93
- A Transactions at an Undervalue (Section 238 of the Insolvency Act 1986)
- B Transactions Defrauding Creditors (Section 423 of the Insolvency Act 1986)
- C Preferences (Section 239 of the Insolvency Act 1986)
- D Jurisdiction of the Court
- E Avoidance of Floating Charges (Section 245 of the Insolvency Act 1986)
- 2 The EC Regulation on Insolvency Proceedings
- Preliminary Material
- I Preliminary
- II Legal Framework
- III Managing the Insolvency of Group Companies
- A Group Companies and Sharing of COMIs
- IV Application of the EC Regulation to Rescue Plans
- V Forum Shopping as a Restructuring Tool
- 3 Out-of-Court vs Court-Supervised Restructurings
- Preliminary Material
- I Workouts and Other Restructurings in the US
- II Out-of-Court Restructurings in England
- III US Exchange Offers
- A Introduction
- B Reasons for Doing a Debt Exchange Offer
- C US Securities Law Considerations
- D Common Tactics in Debt Exchange Offers
- E Certain US Federal Income Tax Considerations and Accounting Considerations
- IV Exchange Offers in the UK
- V Chapter 11 Plan Reorganizations
- A Introduction
- B Limitations on Bankruptcy Court Jurisdiction— Stern v Marshall
- C Chapter 11 Plan Standards
- 1 General
- 2 Best interests test
- 3 Absolute priority rule
- 4 Feasibility
- 5 Other plan confirmation standards
- 3.128
- (a) The plan must comply with the applicable provisions of title 11 (section 1129(a)(1))
- (b) The plan proponent must comply with the applicable provisions of title 11 (section 1129(a)(2))
- (c) The plan must be proposed in good faith (section 1129(a)(3))
- (d) Additional requirements under section 1129(a)
- D Plan Mediation
- VI Pre-Packaged and Pre-Arranged Chapter 11 Plans
- A Pre-Petition Activities
- 1 General
- 2 Pre-petition disclosure and solicitation of a pre-packaged plan of reorganization
- (a) Is court approval of the disclosure statement required?
- (b) Sufficient disclosure
- (c) The ‘adequate information’ standard
- (d) Disclosure statement contents
- (e) Dissemination of the plan, disclosure statement, plan ballots, and voting notice to creditors and shareholders
- (f) Deadline to vote on the plan
- 3 The reorganization plan
- B First-Day Filings
- 3.155
- 1 Debtor’s standard filings
- 2 Additional filings for pre-packaged or pre-arranged plans
- 3.158
- (a) Plan and disclosure statement
- (b) Pleadings to establish date for plan confirmation hearing and date by which plan confirmation objections must be filed
- (c) Pleadings to set bar date for filing proofs of claim or interest
- (d) Pleadings to obtain court approval of pre-petition and post-petition documents and actions
- C Confirmation Hearing (Day 30–60)
- D Post-Confirmation Activities
- E Advantages and Disadvantages of a Pre-Packaged or Pre-Arranged Chapter 11 Plan
- A Pre-Petition Activities
- VII The Section 363 Sale Alternative
- VIII US Chapter 11 and Administration in the UK Compared
- A Administration
- B Differences in Theory
- C Differences in Practice
- 3.205
- 1 Management of the debtor
- 2 Ability of third parties to terminate contracts with the debtor
- 3.212
- (a) Chapter 11 automatic stay
- (i) Judicial and administrative proceedings
- (ii) Enforcement of judgments
- (iii) Acts to obtain possession or control of estate property
- (iv) Acts to create, perfect, or enforce liens
- (v) Acts to collect
- (vi) Exercise of right to set-off
- (vii) Tax court proceedings
- (b) Moratoria in administration
- (i) Moratorium on other insolvency processes
- (ii) Moratorium on the enforcement of security
- (iii) Moratorium on the repossession of goods
- (iv) Moratorium on the exercise of a right of forfeiture by peaceable re-entry (or right of irritancy in Scotland)
- (v) Moratorium on the institution of a legal process against the company or its property
- 3 The ability of the debtor to raise new financing
- 4 The ability to bind non-consenting creditors
- D Perceptions of Administration and Chapter 11
- IX The Role of Receivership in English Debt Restructurings
- X The Role of the Company Voluntary Arrangement in English Debt Restructurings
- XI English Pre-Packaged Administrations and Corporate Debt Restructurings
- XII English Schemes of Arrangement and Corporate Debt Restructurings
- XIII Comparison Between ‘Cramdown’ in England Achieved Through a Scheme and a Pre-Packaged Administration and (A) a Chapter 11 Plan of Reorganization and (B) a Section 363 Credit Bid with Stalking Horse
- 4 The UNCITRAL Model Law on Cross-Border Insolvency
- Preliminary Material
- I The Impact of the UNCITRAL Model Law on Cross-Border Insolvency
- II The US Version—Chapter 15
- III Chapter 15 Recognition of English Schemes of Arrangement
- IV Does Availability of Chapter 15 Relief Affect Willingness to Accept Jurisdiction in Chapter 11 Case Where Debtor’s COMI is Outside the US?
- V Choosing Between Chapter 15 and Chapter 11 for Foreign Debtors
- VI Notable Litigation Arising Under Chapter 15
- A Litigation Regarding COMI
- B Litigation Regarding Available Relief
- C Litigation Regarding Section 363
- VII Areas for Potential Improvement
- VIII The English Experience of the Model Law— The Cross-Border Insolvency Regulations 2006
- A Implementation
- B Framework of the Regulations and Limitations on Application
- C Relationship Between the Regulations and Other Bases of Recognition and Assistance Under English Law
- D Key Definitions
- E Recognition of a Foreign Proceeding and Relief
- F Effects of Recognition
- G Foreign Creditors’ Rights of Access to Proceedings Under British Insolvency Law
- H Cross-Border Cooperation
- I Commencement of Concurrent Proceedings and Coordination of Relief
- J UNCITRAL Guidance
- 1 Insolvency in the UK and the US
- Part II Bank Resolution
- 5 Legal Aspects of Banking Regulation in the UK and US
- 6 Banks in Distress
- Preliminary Material
- A Sermons and Burials
- B Northern Rock: the Catalyst for the Banking Legislation
- C The Institutions to Which the Banking Act Applies
- D The Role of the Appropriate Regulator, the Bank of England, and the Treasury
- E Recovery and Resolution Plans
- F Early Intervention and the PRA Proactive Intervention Framework
- G The Special Resolution Regime: Part 1 of the Banking Act
- H The Impact of Share Write-down and Conversion, and Share Transfers and Property Transfers
- I Compensation and Valuation
- J The Resolution of Dunfermline Building Society
- K Third Country Resolution Actions
- L Recognized Central Counterparties
- 7 Banking Act Restructuring and Insolvency Procedures
- Preliminary Material
- A Introduction
- B The Administration and Liquidation Regime for Banking Institutions
- C The Bank Administration Procedure
- 7.11
- 7.12
- 7.13
- 7.14
- 1 The application for an administration order
- 2 The purpose of the administration
- 3 The process of administration
- D Bank Insolvency Procedures
- E Building Societies
- F The Treatment of Creditors in Bank Insolvencies
- G Deposit Protection
- H Cross-Border Bank Insolvency
- I The Investment Bank Special Administration Regime
- 8 Resolution of US Banks and Other Financial Institutions
- Preliminary Material
- I Introduction
- II Fundamentals of Resolution Authority
- III Resolution of US IDIs
- 8.21
- 8.22
- A Background
- B Supervisory and Other Tools to Prevent Failure
- 8.42
- 1 Capital and liquidity regulation
- 2 Prompt corrective action
- 3 Discount window and other lender-of-last-resort facilities
- 4 Deposit insurance
- 5 Supervision, examination, and enforcement
- 6 Enhanced prudential standards
- 7 Early remediation
- 8 Recovery plans
- 9 Source of strength obligations
- 10 Government assistance to open financial institutions
- C Resolution Process
- D FDIC-Assisted Purchase-and-Assumption Sale Transactions
- E Claims Process
- F FDIC Super Powers
- 8.149
- 1 Domestic depositor preference rule
- 2 Contingent claims not provable
- 3 High bar to enforceability of contracts
- 4 Power to enforce contracts despite ipso facto clauses
- 5 Repudiation of contracts
- 6 Special treatment for qualified financial contracts
- 7 Security interests
- 8 Discretion to discriminate among similarly situated creditors
- 9 Super-priority over fraudulent transfers by insider or debtor
- 10 Cross-guarantees
- 11 Statute of limitations, tolling, and removal powers
- IV Resolution Authority over Fannie Mae, Freddie Mac, and the Federal Home Loan Banks
- V Resolution Authority over Systemically Important Financial Institutions
- 8.216
- 8.217
- A Orderly Liquidation Authority Framework
- B Key Policy Issues
- 8.227
- 1 Why not apply the US Bankruptcy Code?
- 2 The ‘too big to fail’/moral hazard debate
- 3 The proper procedure for handling creditor claims
- 4 Funding
- 5 Who should be the resolving agency?
- 6 Mandatory rule-making
- 7 Valuation issues
- 8 Practical remedy for minimum recovery rights?
- 9 Haircuts on secured claims?
- 10 Extend automatic stay to QFCs
- C Single-Point-of-Entry Strategy
- D Resolution Under the US Bankruptcy Code
- E Resolution Planning
- VI International Coordination of Cross-Border Resolutions
- VII Conclusion
- 9 European Bank Resolution Regime
- Preliminary Material
- I Introduction
- II The Pillars of the Banking Union
- III Early Intervention
- IV Resolution Objectives, Conditions, and Principles
- V Resolution Tools
- VI Cross-Border Group Resolution
- VII Relations with Third Countries
- VIII The Financing Arrangements
- Part III Sovereign Debt Restructuring
- 10 An Introduction to Sovereign Debt Restructuring
- 11 Litigation Aspects of Sovereign Debt
- Preliminary Material
- I Sovereign Debt Litigation
- II Legal Precedents
- A Cases Being Analysed
- B Some Preliminary Distinctions: Using a Fiscal Agent and a Trust Structure
- C The Pari Passu Cases
- 1 Pravin Banker Associates v Banco Popular del Peru
- 2 Elliott Associates, LP v Banco de la Nación
- 3 The pari passu clause in sovereign debt instruments
- 4 The Red Mountain case (California)
- 5 The Kensington International case (England)
- 6 The Kensington International II case (against BNP) (New York)
- 7 The LNC case (Belgium)
- 8 A new legislative development to curtail the applicability of the pari passu clause
- 9 Applestein, Macrotecnic International Corporation and EM Ltd v Argentina
- 10 NML Capital Limited (and Others) v Argentina : the latest, and most important, chapter in the pari passu saga
- D The Pari Passu Clause and Multilateral Debt Payments
- E The Attachment of the Tendered Bonds (Future Rights)
- III Conclusion
- 12 Transactional Aspects of Sovereign Debt Restructuring
- Preliminary Material
- I Transactional Aspects of Sovereign Debt Restructuring
- A An Introduction to the Transactional Aspects of Sovereign Debt Restructuring
- B Current Debate on Sovereign Debt Restructuring: Procedures and Methods
- C The SDRM Proposed by the IMF
- D The ESM: An Institution Designed to Avert Financial Crises
- E The Use of CACs, Exit Consent, and Term Enhancements
- F Case Study: Uruguay’s Debt Reprofiling—How to Perform a Successful Exchange Offer
- 1 Introduction
- 2 A success story in debt reprofiling
- 3 Some concluding remarks on Uruguay’s exchange offer
- II Conclusion
- Part I Corporate Debt Restructuring
- Further Material
- [34.229.63.28]
- 34.229.63.28
