Elizabeth A. McGovern

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Following consultations on insolvency and corporate governance in 2017 and 2018, the Government recently published its response setting out some notable proposed changes to the existing insolvency and corporate governance legislation. Following the high profile failures of Carillion and BHS, the Government’s response is largely aimed at encouraging the recovery of viable companies, improving transparency and promoting responsible directorship. This article will primarily look at the proposed changes focused on facilitating a rescue culture. The…
You could be forgiven for thinking that the Bills of Sale Acts of 1878 and 1882 would have been repealed by now, or could never apply to you, over 130 years after they were drafted. But if you’ve ever purchased a second-hand car (or, if you’re lucky enough to be purchasing works of art or borrowing against your gold coins), you could be wrong. Bills of sale may be granted by individuals or unincorporated businesses…
In February 2016, Mr Justice Snowden handed down his judgment in the High Court proceedings concerning Ralls Builders Limited (in liquidation) [2016] EWHC 243 (Ch). This matter concerned an application by the liquidators of Ralls Builders Limited (in liquidation) (the company) for a declaration regarding the alleged wrongful trading of the company by its directors, under section 214 of the Insolvency Act 1986 (the Act). The detailed and considered judgment sets out the historical case…
This appeal arose out of the litigation fallout from the Bernard Madoff Ponzi scheme. In the appeal, the Privy Council considered whether, at common law, an agreement to submit to jurisdiction must be express or whether it could be implied or inferred. The Board of the Privy Council found that an agreement to submit to jurisdiction need not be express but could be implied or inferred. In this instance the appellant was able to show…
In our increasingly global world, cross-border insolvencies have become relatively commonplace. Lehman Brothers and Nortel Networks are just two of the matters where parallel proceedings in multiple jurisdictions were necessary in order to effectively administer the debtors’ estates. Neither the Regulation nor the Model Law seek to address or harmonise the substantive differences among insolvency regimes in different jurisdictions, but both are similar in that they are based on the premise that a debtor’s “centre…
To qualify as a “debtor” under the U.S. Bankruptcy Code, an entity must reside, have a place of business or property in the U.S. It is common for non-U.S. entities that file for chapter 11 protection to rely on the “property” element of §109(a). Property has traditionally been widely construed, with it now being commonly accepted that attorney retainers held on deposit in New York are sufficient to support jurisdiction in the Bankruptcy Court for…
The Municipality of Sao Paulo and the Republic of Brazil successfully defeated an appeal from two BVI registered companies to the Privy Council which considered what the circumstances are, if any, where backward tracing would be permitted. Background The two appellants, “Durant” and “Kildare” are BVI registered companies, which were controlled by Mr Paulo Maluf who, between 1993 and 1996, had been the mayor of Sao Paulo. Mr Maluf had, over the course of a…
Van Gansewinkel Groep BV, Re [2015] EWHC 2151 (Ch) In what appears to be a growing trend, the High Court in England has sanctioned another scheme of arrangement involving non-English companies. Last week’s judgment from Mr Justice Snowden joins an ever growing number of decisions by the English courts to sanction schemes where debtors do not have their centre of main interests, establishment or any significant assets in England. In this instance, the scheme was…
Introduction On 20 May 2015 the European Parliament adopted the recast Insolvency Regulation (the “Recast Regulation”) amending the existing Council Regulation (EC) (No. 1346/2000) on Insolvency Proceedings (the “Regulations”). Amongst the changes implemented by the Recast Regulation is the incorporation of a definition of centre of main interest (“COMI”). A company’s COMI is important from an insolvency perspective because COMI determines the jurisdiction in which a company can commence an insolvency proceeding. COMI has been…
While it is clear that chapter 11 of the U.S. Bankruptcy Code can be an effective tool of reorganisation for distressed foreign shipping companies that are locked in an adversarial dispute with their creditors, should an English scheme of arrangement be considered as an alternative to a U.S. bankruptcy case for shipping companies that are able to reach a consensual resolution with a majority of their creditors? U.S. bankruptcy courts are often cited as the…