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Articles contributed by Holman Fenwick Willan
Business interruption insurance is often a key component of a company’s business continuity plan. The insurance is designed to compensate an insured for the financial effect of the interruption or interference to that business as a result of physical damage to an insured property or other key external events, such as damage at a supplier’s or customer’s premises. The intention is to restore the business to the same financial position as if the loss had not occurred, subject always to the terms and conditions of the policy.
The upheaval over the Past few years in the financial markets and the global economy has led to a climate of increased regulation worldwide, with greater exposures for directors and the companies by which they are employed. All of this has highlighted the importance for companies to have adequate insurance protection. Directors’ and officers’ (D&O) insurance is one such policy.
D&O cover protects a director or officer against those potentially significant personal liabilities that may arise from their negligence and breach of duty when acting in their capacity as a director or officer. It is also important to attract high-calibre personnel who may otherwise be wary of taking such positions, particularly for large multinational companies exposed to multijurisdictional regulation and legal systems. However, D&O insurance also protects the company’s balance sheet in various ways.
Imagine the situation: your company has a significant claim against a supplier for breach of contract and/or negligence. Following the original tender process you are aware that the supplier has the benefit of liability insurance, you know the identity of the insurers and the levels of cover available. You suspect that the supplier itself is in financial difficulties or, worse still, it is in fact insolvent. In what circumstances can you circumvent the insured wrongdoer and proceed directly against the insurers? The purpose of this article is to compare and contrast the position under English and French law.
Born from increasing international co-operation on anti-bribery issues and a general acceptance that legislation relating to the issue in the UK is outdated, the Bribery Act 2010 (the 2010 Act) received royal assent on 8 April 2010.
When insolvency law and arbitration meet, the question arises as to how the commencement of the insolvency proceeding affects the ability to arbitrate, the arbitration agreement, the arbitration proceeding and the setting aside proceeding, as well as the recognition and enforcement of the arbitral award.
In a global context, international arbitration meets international insolvency law, which brings into play the two following issues:
Given the current economic climate, competition authorities are expecting a possible increase in the use of the ‘failing firm’ defence. The doctrine provides potential opportunities for businesses to acquire competitors, which in normal circumstances would be regarded as anti-competitive. The basic rationale behind the doctrine is that since the failing firm would have left the market anyway due to its financial collapse, any harm to competition caused by the loss of an independent market player would arise regardless of the merger. The doctrine therefore potentially allows a business to acquire its struggling competitor, which is on the brink of administration or liquidation. The defence is worth considering by any administrator or liquidator of a business. Competitors are likely to pay the highest prices for assets and so a merger with a competitor could be an appropriate solution to save a deteriorating business.
The EC Regulation on Insolvency proceedings does not make particularly easy reading.1 It is a Brussels-made law in the form of a Directive, which took effect in all EU member states (except Denmark, which opted out) on 31 May 2002. Making sense of its provisions involves understanding some slightly unfamiliar concepts, some containing a rather circular logic. That is why there is a rapidly growing body of case law on the key issues. On the positive side, one issue that has been significantly clarified is the meaning of the debtor’s centre of main interests (COMI), the most fundamental concept of the EC Regulation.
Since the introduction of the Insolvency Act 1986 (the 1986 Act), there has been a standard way of dealing with the leasehold premises of a company in administration as part of the sale of the business. Typically, the business sale agreement provides for the purchaser to occupy the leased premises on the basis of an informal licence. The sale agreement places the onus on the purchaser to obtain the landlord’s consent to the assignment of the lease. It also provides that the consequence of this formal breach of the lease is to be at the risk of the purchaser alone. In the majority of cases, this method of dealing with the company’s leased business premises is effective because the landlord will prefer to have the purchaser or assignee in occupation paying the rent and will usually work with the purchaser to formalise the assignment of the lease.
A Financial Times journalist reporting on the successful approval of a company voluntary arrangement (CVA) by the creditors of JJB Sports plc (JJB) in May 2009 referred to CVAs as:
‘The previously obscure legal process… tipped to become one of the UK’s most popular corporate lifelines.’
To describe the CVA process as ‘obscure’ is something of an exaggeration, but is there any basis for this prediction? After a couple of false starts in CVAs by Powerhouse Ltd (Powerhouse) and Stylo plc (Stylo), a model for the rescue of large retail companies using stand-alone CVAs has been developed. Three recent high-profile cases in the retail sector, involving JJB, Focus (DIY) Ltd (Focus) and Blacks Leisure Group plc (Blacks), have shown that the CVA procedure can be more useful than administration in rescuing a retail business. JJB and Blacks were both publicly listed companies, and JJB was the first such company to use a stand-alone CVA, without the protection of the administration moratorium, as a rescue procedure.
Logistics service providers need to have an effective contingency plan to deal with the prospect of their retailer customers experiencing severe financial distress, defaulting on payments, or going into administration or liquidation. Although good credit control is essential, especially given the recent disappearance of several household names in the retail sector, this article will focus on the need for the protection afforded by well-drafted contracts that give the service provider effective liens.
With effective liens in place, if (in accordance with Murphy’s Law) the worst does happen, the service provider will be far better off from a legal point of view and the risks to its own business associated with a customer’s default can be minimised. This article is written with the logistics service provider in mind, but several basic points will also apply to service providers in other sectors.
there is no legal definition of the term ‘twilight zone’ (perhaps derived from the cult TV series, the writer would like to think), which is now widely used to describe a period of trading when a company has, or is predicted to have, insufficient cash to pay its debts as they fall due. This might be an immediate cash-flow crisis or the problem might be anticipated many months ahead.
The twilight zone continues until the company is put back on an even keel, meaning a positive cash flow and balance sheet, usually achieved by restructuring, rescue and turnaround techniques, often involving refinancing. Alternatively, the business or shares of the company might be sold. A company might come out of the twilight zone, only to dip back into it from time to time. Unfortunately, many companies in the twilight zone are incapable of rescue and have to be put into administration or liquidation. The date of the commencement of the formal insolvency procedure then triggers the vulnerable period in English law, governing claw backs in relation to preferences, transactions at undervalue, floating charges and other matters, which come under the scrutiny of the liquidator and the creditors in a winding up.
With the ever-increasing trend towards globalisation, it is often observed that there are few businesses of reasonable size that do not trade across borders. At this difficult economic time, many are likely to have overseas suppliers, contractors, counter-parties and customers undergoing financial difficulties. For these businesses, cross-border insolvency issues are cropping up frequently. At the same time, the law is rapidly developing, with cases on cross-border insolvency issues regularly brought before the English and foreign courts.
The pre-pack administration, after some difficult formative years, appears to have emerged as a legitimate restructuring tool. Criticisms levelled by creditors, certain that they are getting a bad deal, have been numerous and, as a consequence of actions by creditors, the pre-pack has been put under the microscope in court. Out of all this has emerged something that appears to be seen by the court as a process that is compliant with statutory rules and policy. This article looks at the development of the pre-pack and asks whether it has now ‘come of age’.
Every economic downturn brings in its wake a series of restructuring cases, when the mistakes made during the previous boom are called to account and hard lessons are learnt. Mann J recently gave judgment in the High Court in Bluebrook Ltd, Re . The matter came to court on the application to sanction three schemes of arrangement.1 It was opposed by the mezzanine lenders on the basis that their interest was unfairly prejudiced. Bluebrook provides a helpful insight into the Court’s approach to the use of schemes of arrangement in restructuring. It also deals in some detail with the issue of determining where value breaks, a crucial issue in a restructuring for the purpose of deleveraging a business overburdened with debt.