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INSOL International News Update
August 2018  Issue No. 8
This issue is kindly sponsored by...

Chartered Accountants • Licensed Insolvency Practitioners

Contents at a Glance...

Editor's Note

Highlight Article

The Americas

Asia Pacific

Europe, Africa and Middle East

Publications & News

Conferences & Seminars

Editor's Note

Yet again our stalwart at INSOL, (Louise Jennings), who searches far and wide for industry news, has curated another excellent set of articles from around the world on a diverse set of topics. Even though we're in the middle of the northern hemisphere summer, our industry continues to give us plenty to think about.
The headline article this month, relates to a BVI case dealing with the thorny issue of the statutory approach taken in the BVI in relation to shareholders’ standing as interested parties in BVI proceedings. This is a Court of Appeal decision which hopefully should bring this issue to a conclusion. Other highlights this month include from the US a wide-ranging article dealing with jurisdiction, comity and the presumption of extraterritoriality arising out of the Arcaptia bankruptcy in the US. The thorny subject of IP rights in the US is dealt with in another article which focuses on the ability both of debtor-owners to freely reject them, and of licensees to continue to use them. This is one that is going to the Supreme court for a final decision. 

Over in Hong Kong, the Hon. Mr. Justice Harris has handed down a judgment which provides guidance to practitioners on the interaction between the new Singaporean rescue legislation (which implements the UNCITRAL Model Law on Cross-Border Insolvency (the Model Law)) and provisional liquidation in Hong Kong. In doing so, Mr. Justice Harris provided a useful roadmap for future similar situations and at the same time he reiterated his comments about Hong Kong bringing in a modernised corporate rescue procedure.

There are a number of articles with a Model Law theme. From Australia, we report on the most recent decision there under the Cross-Border Insolvency Act 2008, In the matter of Rizzo Bottiglieri-de Carlini Armatori SpA. This shipping insolvency case is significant for several reasons including, for the first time in Australia, temporally limited recognition of foreign proceedings.  The Indian Government has proposed that India become the latest nation to adopt the Model Law, with certain modifications and recently released a suggested draft chapter on cross-border insolvency to be included into the Insolvency & Bankruptcy Code, 2016. This addresses a missing link in the ambitious reforms of the Indian insolvency framework and is to be welcomed. And finally, we have a report on the draft model law on recognition and enforcement of insolvency related judgments completed by UNCITRAL Working Group V. 

Yet another excellent edition! 


Stephen Briscoe


British Virgin Islands
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Highlight Article

“Shareholders / Creditors” Standing in BVI Liquidations – A Reminder
Stanford v Akers and McDonald (ECSC – CA 12 July 2018) 


This month’s Highlight Article examines a recent decision of the Eastern Caribbean Supreme Court (Court of Appeal) regarding the statutory approach taken in BVI in relation to shareholders’ standing as interested parties in BVI insolvency proceedings. The Appellant, Kevin Stanford, a high-profile businessman involved in numerous fashion-related and other companies, was alleged to own shares in a company (Trenvis) which, in turn, owned shares in Chesterfield United Inc (Chesterfield), a company in BVI liquidation. Stanford had numerous problems with certain decisions of the Liquidators of Chesterfield. 


After a trial at first instance the Commercial Court rejected Stanford’s application on grounds inter alia that Stanford did not have standing under section 273 of the BVI Insolvency Act (the Act). Section 273 of the Act provides that …a person aggrieved by an act, omission or decision of an office holder may apply to the Court and the Court may confirm, reverse or modify the act, omission or decision of the office holder.  This article details the Court of Appeal’s careful examination of the ‘standing’ issue in particular whether Stanford as a shareholder of shareholders of the company in liquidation had standing under section 273 to challenge the decisions of the liquidators. 




Brian Child

Senior Counsel

Campbells, British Virgin Islands

To read the full article please click here

For the case decision please click here

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The Americas

Cayman Islands
On the Record Third Party Access to Cayman Islands Court Transcripts and Evidence 
The International Banking Corporation BSC (In Administration) v Ahmad Hamad Algosaibi & Brothers Company 
The International Banking Corporation (TIBC) was a failed Bahraini bank closely involved with the events which formed the subject matter of the fraud litigation in Ahmad Hamad Algosaibi & Brothers Company v SAAD Investments Company. TIBC was not itself party to that claim but, involved in overseas satellite litigation, its Administrators applied to the Grand Court for disclosure of the evidence that had been heard in the course of the main trial. In its decision, the Cayman Islands Court of Appeal has clarified the proper approach to requests by third parties for access to documents deployed in the course of a trial and transcripts of proceedings.
For a case note by Walkers, August 2018 please click here
For the case decision please click here
New York Bankruptcy Court Finds Constitutional Authority to Enter Default Judgments Against Foreign Defendants
In re Advance Watch Co., Ltd., No. 15-12690 (MG), 2018 WL 3203386 (Bankr. S.D.N.Y. June 29, 2018)
In a recent opinion, US Bankruptcy Judge Martin Glenn of the Southern District of New York held that Bankruptcy Courts may enter final default judgments against non-US defendants who fail to respond to a properly served summons and complaint. Judge Glenn held that a properly served foreign defendant in a preference action who fails to respond is deemed to have implied its consent to a Bankruptcy Court’s entry of a final order and, thus, under Stern v. Marshall and its progeny, a Bankruptcy Court may enter a default judgment.
For a case note by Arent Fox, August 2018 please click here
For the case decision please click here

Cayman Islands
The Cayman Islands Adopt a Global Approach to Cross-Border Communication and Co-Operation
In a welcome Practice Direction on 30 July 2018, the Cayman Islands adopted the use of the Judicial Insolvency Network Guidelines for Cooperation in Cross-Border Insolvency Matters in cross-border insolvency and restructuring cases (joining Bermuda and the BVI) and the use of the American Law Institute (ALI) / International Insolvency Institute (III) Guidelines Applicable to Court to-Court Communications in Cross-Border Cases. Both Guidelines aim to enhance coordination and harmonisation of cross-border insolvency proceedings and, whilst there are differences, are broadly similar.
For the Harneys Article, 8 August 2018, please click here


(i) The Arcapita Bankruptcy: A Primer in Jurisdiction, International Comity, and the Presumption of Extraterritoriality
Recent decisions arising out of the Arcapita bankruptcy case provide useful guidance regarding the minimum contacts required for US bankruptcy court jurisdiction as well as when and how to apply international comity and the presumption against extraterritoriality in bankruptcy litigation. This article examines these interesting international law concepts as they arose in the Arcapita litigation and highlights the current state of the law with respect to each issue. Additionally, the decisions serve as important reminders for foreign defendants that they may be subject to preference claims or other litigation in US Bankruptcy Courts, even if they believe their ties to the US are minimal.
For a case note by George P. Angelich, M. Douglas Flahaut and Christopher K.S. Wong, Arent Fox August 2018 please click here

(ii) US Supreme Court Asked to Resolve Critical Trademark Licensing Issues in Bankruptcy
Mission Prod. Holdings, Inc. v. Tempnology, LLC (In re Tempnology LLC), 879 F.3d 389 (1st Cir. 2018) (petition for certiorari pending)
The economic value of IP rights in US bankruptcy proceedings has risen rapidly. Due to Congress's unique view of trademark licenses, appellate courts are increasingly divided on the ability both of debtor-owners to freely reject them, and of licensees to continue to use them. The licensee in Tempnology has asked the US Supreme Court to clarify what, if any, rights under a trademark license survive rejection in Chapter 11. As this article makes clear, the Supreme Court's review of this issue to address an issue of growing uncertainty is a matter of global economic significance. 

For the full article please see DLA Piper Restructuring Global Insight, 20 July 2018

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Asia Pacific


Recognition of Foreign Proceedings Under the UNCITRAL Model Law: Recent Developments in Australia 

In the matter of Rizzo Bottiglieri-de Carlini Armatori SpA [2018] FCA 1067  
On 29 June 2018 the Federal Court of Australia (the Court) handed down its decision in In the matter of Rizzo Bottiglieri-de Carlini Armatori SpA (Rizzo), the most recent decision under the Cross-Border Insolvency Act 2008 (Cth) (the Act).  Rizzo was an application for recognition of Italian fallimento proceedings as foreign main proceedings under the Act. The case is significant for several reasons. First, it demonstrates the Court’s treatment of Italian fallimento proceedings for the purposes of recognition under the Act. Second, it is a further illustration of the Federal Court’s practice to allow an Admiralty Judge to determine whether an arrest of a vessel ought to be allowed as an exception to the general stay under Art 20(1) of the Model Law (the principle in the Yu line of cases). Third, it includes, for the first time in Australia, temporally limited recognition of foreign proceedings. 
For a case note by Angus Stewart SC and Karen Petch, Barristers of New Chambers, Sydney, Australia, August 2018 please click here
For the case decision please click here 

Hong Kong 
Hong Kong Provisional Liquidation Meets Singapore Moratorium: Re CW Advanced Technologies Limited
Re CW Advanced Technologies Limited [2018] HKCFI 1705
In this recent Hong Kong High Court decision an application made by the company’s largest creditor for the appointment of provisional liquidators was granted.  Despite the significant cross-border background leading to the provisional liquidation application, the parties took the position that they would not need to address the Court’s cross-border concerns, such as the impact and relevance of the Singapore moratorium (under the recently revised Singapore Companies Act) in this case. Nevertheless, the Court provided a helpful list of issues for future applicants to consider when faced with similar cross-border situations and set out some of the key questions that need to be addressed regarding the recognition of the Singapore moratorium, such as whether it could constitute a collective insolvency proceeding.
For the case note by Des Voeux Chambers, 20 July 2018 please click here
For the case decision please click here 

India Proposes to Adopt the UNCITRAL Model Law on Cross-Border Insolvency 
On 20 June 2018, the Indian Government released a suggested draft chapter on cross-border insolvency to be included into the Insolvency & Bankruptcy Code, 2016 (Code). This addresses a missing link in the ambitious reforms of the Indian insolvency framework and is to be welcomed.
Despite detailed consideration at the time it was introduced, the Code was largely silent on cross-border matters. The Government has proposed that India become the latest nation to adopt the Model Law, with certain modifications. This briefing summarises the proposals and sets out some initial thoughts on the potential impact of the proposals if implemented. Responses to the proposals were invited by 30 June 2018.
For the full article please see Herbert Smith Freehills Legal Briefing, 24 July 2018

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Europe, Africa and Middle East


Legal Framework for Distressed M&A Transactions in Poland
With the enactment of the new Polish Restructuring Law and a substantial reform to the Bankruptcy Law as of 1 January 2016, the legal framework for distressed M&A transactions in Poland has been significantly changed and new legal tools have become available to implement it.
Firstly, the introduction of procedures in the form of ‘pre-pack’ has played an important role, allowing debtors to maximise their assets’ value (or what is left of it), accelerate the distressed business sale process, and ensure the continuity of operations. Polish pre-pack is increasingly viewed as a prime opportunity for a speedy and effective sale of distressed enterprises, however, it is not an ideal solution, with a number of issues still needing to be fine-tuned.  This article examines the opportunities for investment in Polish distressed business including attractive alternatives to ‘pre-packs’ for the acquisition of distressed enterprises. 
For the full article please see Eurofenix Summer 2018, p. 30 - 31

BHS, Carillion and the Current Government Consultation on Insolvency and Corporate Governance
After the collapse of BHS in 2016 and the collapse of Carillion in 2018 amongst others, the UK Government has been looking at ways to tighten up the laws which allow the winners in these massive collapses to retain big pay-outs and which leave the losers with worthless shares, claims, jobs or pensions. However, the Government also wishes to retain the competitiveness of the UK market. On 20 March 2018, the Government issued a consultation on insolvency and corporate governance, seeking the views of a number of stakeholders on the proposals. The aim of the consultation paper is to deliver: “a strong business environment…by seeking views on new proposals to improve the governance of companies when they are in or approaching insolvency”. Whilst the consultation period has now closed, this article reviews and comments on the key areas in the consultation, including strengthening corporate governance in pre-insolvency situations, including: group structures; shareholder responsibilities; payment of dividends; directors’ duties and the role of professional advisors; and protection for company supply chains in the event of insolvency.
For the full article please see South Square Digest, June 2018, p. 50 - 53

Recognition and Enforcement of Insolvency-Related Judgments
UNCITRAL’s Working Group V (Insolvency Law), at its 53rd session in New York, has just completed work on the model law on recognition and enforcement of insolvency-related judgments (Judgments Model Law). The Judgments Model Law, together with a draft guide to enactment, will be submitted to the UNCITRAL Commission for finalisation and adoption within the year. If adopted, Member States will be invited to incorporate the Judgments Model Law into their national laws in order to harmonise cross-border enforcement and recognition of insolvency-related judgments. The Judgments Model Law is designed to complement the existing 1997 UNCITRAL Model Law on Cross-Border Insolvency and may be incorporated by States on a stand-alone basis even if they have not enacted the Model Law.
As this article notes, it will be interesting to see how the Judgments Model Law will be accepted by states around the globe and whether it will succeed in further harmonising cross-border recognition of judgments in the insolvency arena.

For the full article please see Eurofenix Summer 2018, p.32 – 34 
                                                                                                                       Back to top
Publications & News

INSOL International Special Report – An Evaluation of the Role of Creditors in Insolvency Proceedings: Report on Comparative Study  

July 2018


Historically, creditors have had important roles to play in insolvency proceedings. However, insolvency law is constantly evolving and changes in insolvency law may give rise to questions as to whether the roles of creditors in different types of insolvency proceedings, which may be mainly historical, remain appropriate in the modern insolvency environment. This project was undertaken with a view to formulating principles as to how creditor roles in different types of insolvency proceedings should be determined. 
Information about the roles of creditors in different insolvency proceedings in different jurisdictions for the purposes of such an analysis were sought. In response to that request, completed questionnaires from outside the United Kingdom were received for Australia, Egypt, France, Germany, Italy, Latvia, New Zealand, Romania, Russia, Spain and the USA.  The results of the comparative analysis of the roles of creditors in these jurisdictions and in the United Kingdom, have now been compiled in this report. 

INSOL International sincerely thanks Donna McKenzie Skene for leading this project. The information contained in this report will no doubt be of interest to the wider INSOL members as it contains information not readily available elsewhere.
To view the special report click here 
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Conferences & Seminars

INSOL Singapore
2 - 4 April 2019
Save the date for the INSOL International Asia Pacific Annual Regional Conference taking place in Singapore at the Sands Expo and Convention Centre, Marina Bay Sands.  This will be a superb opportunity to meet colleagues from around the world in the vibrant city of Singapore. The Main Organising Committee and the Technical Committee have already commenced work to develop a cutting edge and forward looking technical programme.
Registration will open September 2018.
We would like to thank our sponsors for their generous support of INSOL Singapore. For further information on sponsorship please contact Tina McGorman tina@insol.ision.co.uk
Main sponsors: Borrelli Walsh | Lipman Karas | Norton Rose Fulbright | RSM
Welcome Cocktail Reception: BDO 
Farewell Cocktail Reception: AlixPartners
Corporate Sponsors: Harneys | Vendorable
Wednesday Networking Coffee Break: Archer & Greiner P.C.
Wednesday Welcome Breakfast: South Square
Thursday Welcome Breakfast: Brown Rudnick
Thursday Lunch: Burford Capital
INSOL Singapore - Offshore Ancillary Meeting
2 April 2019
Following on from our successful one day offshore ancillary meeting held in New York this year, we will be holding an offshore ancillary meeting next year again prior to INSOL Singapore, save the date.
The main organising committee are working on the technical programme for the day.
INSOL International would like to thank our offshore sponsors:
Main sponsor: Carey Olsen
Coffee break sponsor: KRyS Global
For further information and details of sponsorship opportunities please contact Sarah Smith, INSOL International at sarah@insol.ision.co.uk

INSOL International Jakarta One Day Seminar
Thursday 13 September 2018
Fairmont Hotel, Jakarta, Indonesia
INSOL International is running its second one-day seminar in Jakarta on Thursday 13 September 2018. The Seminar Chair, Geoffrey Simms, AJCapital Advisory and the Main Organising Committee have prepared a relevant technical programme.  

Registrations are open. Click here to register online

Thank you to the following sponsors for their generous support of the INSOL Jakarta Seminar: 

Platinum Sponsors: AJCapital Advisory | Assegaf Hamzah & Partners
Gold Sponsor: HHP Law Firm

Lunch Sponsor: Deloitte

For further information and details of sponsorship opportunities please contact Susannah Drummond Moray, INSOL International at susannah@insol.ision.co.uk 

INSOL International Dubai One Day Seminar
Wednesday 3 October 2018 
The Ritz Carlton, Dubai International Financial Centre

INSOL International in association with the Dubai Department of Economic Development are holding a one-day seminar in Dubai on Wednesday 3 October.
To register online click here
Early bird registration deadline is the 15 August, so do not forget to register to secure your place.
The seminar co-chairs (Robin Abraham, Clifford Chance and Ahmed Al Hajri, DED) and the organising committee have put together a stimulating and informative programme for the day, which is now available on our website to view. Speakers for our seminar will be announced very shortly.
Thank you to our following sponsors:
Gold sponsors: DLA Piper | Grant Thornton  

A number of sponsorship opportunities are still available. For further information please contact

Sarah Smith, INSOL International at sarah@insol.ision.co.uk 

Africa Round Table Open Forum 

Friday 26 October 2018 

Polana Serena Hotel, Maputo, Mozambique

INSOL International and World Bank Group jointly host the annual Africa Round Table, now in its eighth year!
The first day is a closed meeting by invitation only. The second day, ART Open Forum, is open to anyone interested or affected by insolvency reform in Africa and across the globe.
The theme for 2018 Africa Round Table Open Forum is “Multinational insolvencies in an African context”.

For full details of the programme please see our website
We would like to thank the following sponsors for their generous support of Africa Round Table:

Platinum sponsors:  DLA Piper | PwC

Gold sponsors: Bowmans | ENSAfrica

Dinner sponsor: Grant Thornton
For further information and details of sponsorship opportunities available, please contact Penny Robertson, INSOL International at pennyr@insol.ision.co.uk

INSOL International Hong Kong One Day Seminar
Wednesday 7 November 2018
Four Seasons Hotel, Hong Kong

INSOL International is running its first seminar in Hong Kong on Wednesday 7th November 2018.

Registrations are now open

We would like to thank the following sponsors for their generous support of the INSOL Hong Kong One Day Seminar: 


Platinum Sponsors: Carey Olsen | Conyers Dill & Pearman | Lipman Karas | Tanner De Witt
ail Reception Sponsor: Harneys 
For further information and details of sponsorship opportunities please contact Susannah Drummond Moray, INSOL International at susannah@insol.ision.co.uk

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Contact INSOL

If you would like to send an article for inclusion in one of our forthcoming issues please contact our Technical Officer, Louise Jennings at louise@insol.ision.co.uk

If you would like to introduce a new member to INSOL International please contact our Database Manager, Tony Ashton, at tony@insol.ision.co.uk

Electronic Newsletter Editorial Committee Members

 Stephen Briscoe (Chair)  FFP, British Virgin Islands
 Scott Abel  Fellow, INSOL International
 Buddle Findlay, New Zealand   
 Tara Cooper Burnside

 Fellow, INSOL International

 Higgs & Johnson, Bahamas

 Ian Dorey  K&L Gates, Australia 
 Matthew Goucke  Fellow, INSOL International
 Walkers, Cayman Islands
 Volker Kammel  Reed Smith, Germany 
 Sim Kwan Kiat  Rajah & Tann, Singapore 
 David Lawton  Bracewell LLP, USA  
 Fábio Rosas  Souza Cescon, Brazil  
 Andrew Thorp  Harneys, British Virgin Islands                                   
 Alison Timme  PwC, South Africa 
 Vincent Vroom  Fellow, INSOL International
 Loyens & Loeff, UK

This issue is kindly sponsored by...

Chartered Accountants • Licensed Insolvency Practitioners 

INSOL International Group of Thirty-Six

The Group of Thirty-Six features some of the most prominent and influential firms within the insolvency and turnaround profession. The aim of the Group of Thirty-Six is to work with INSOL to develop best practice guidelines and develop legislation to enhance the ability of practitioners globally to save businesses throughout the world.

AlixPartners LLP 
Allen & Overy LLP 
Alvarez & Marsal 
Baker McKenzie
Brown Rudnick LLP
BTG Global Advisory  
Clayton Utz 
Cleary Gottlieb Steen & Hamilton LLP 
Clifford Chance LLP 
Conyers Dill & Pearman 
Davis Polk & Wardwell LLP 
De Brauw Blackstone Westbroek
Deloitte LLP 
DLA Piper 
Ferrier Hodgson 
Freshfields Bruckhaus Deringer LLP 
FTI Consulting
Goodmans LLP 
Grant Thornton 
Greenberg Traurig LLP 
Hogan Lovells 
Huron Consulting Group 
Jones Day 
King & Wood Mallesons 
Kirkland & Ellis LLP 
Linklaters LLP  
Morgan, Lewis & Bockius LLP 
Norton Rose Fulbright 
Pepper Hamilton LLP 
Pinheiro Neto Advogados
Rajah & Tann Asia 
Shearman & Sterling LLP
Skadden, Arps, Slate, Meagher & Flom LLP 
South Square 
Weil, Gotshal & Manges LLP 
White & Case LLP  

INSOL International Member Associations

American Bankruptcy Institute  
Asociación Argentina de Estudios Sobre la Insolvencia  
Asociacion Uruguaya de Asesores en Insolvencia y Reestructuraciones Empresariales  
Association of Business Recovery Professionals - R3  
Association of Restructuring and Insolvency Experts  
Australian Restructuring, Insolvency and Turnaround Association  
Bankruptcy Law and Restructuring Research Centre, China University of Politics and Law 
Business Recovery and Insolvency Practitioners Association of Nigeria  
Business Recovery and Insolvency Practitioners Association of Sri Lanka  
Canadian Association of Insolvency and Restructuring Professionals  
Canadian Bar Association (Bankruptcy and Insolvency Section)  
Commercial Law League of America (Bankruptcy and Insolvency Section)  
Especialistas de Concursos Mercantiles de Mexico  
Finnish Insolvency Law Association  
Ghana Association of Restructuring and Insolvency Advisors  
Hong Kong Institute of Certified Public Accountants (Restructuring and Insolvency Faculty)  
INSOL Europe  
INSOL India  
INSOLAD - Vereniging Insolventierecht Advocaten 
Insolvency Practitioners Association of Malaysia  
Insolvency Practitioners Association of Singapore  
Instituto Brasileiro de Estudos de Recuperação de Empresas  
Instituto Brasileiro de Gestão e Turnaround  
Instituto Iberoamericano de Derecho Concursal  
Instituto Iberoamericano de Derecho Concursal Colombia

International Association of Insurance Receivers  
International Women’s Insolvency and Restructuring Confederation  
Japanese Federation of Insolvency Professionals 
Korean Restructuring and Insolvency Practitioners Association   
Law Council of Australia (Business Law Section)  
Malaysian Institute of Certified Public Accountants  
National Association of Federal Equity Receivers  
Nepalese Insolvency Practitioners Association  
NIVD – Neue Insolvenzverwaltervereinigung Deutschlands e.V.  
  Recovery and Insolvency Specialists Association (BVI) Ltd  
 Recovery and Insolvency Specialists Association (Cayman) Ltd 
Restructuring and Insolvency Specialists Association of Bahamas

Restructuring and Insolvency Specialists Association of Bermuda 
REFOR–CGE, Register of Insolvency Practitioners within "Consejo General de Economistas, CGE"  
Restructuring Insolvency & Turnaround Association of New Zealand  
Russian Union of Self-Regulated Organizations of Arbitration Managers  
Society of Insolvency Practitioners of India  
South African Restructuring and Insolvency Practitioners Association   
Turnaround Management Association do Brasil
Turnaround Management Association (INSOL Special Interest Group)

INSOL International

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