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Pitkowitz & Partners | Austria | 5 Apr 2019

Restructuring plans and their impact on non-participating creditors

Under the Insolvency Act, once a restructuring plan has been confirmed, the debtor is discharged from its debt and is subsequently prevented from paying its creditors their deficiency or repaying other granted benefits. Consequently, any claims that were not registered during the insolvency proceedings – even if they should have been – fall under this restriction and cannot be repaid. That......
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Pitkowitz & Partners | Austria | 21 Dec 2018

Avoidance of overdraft payments due to preferential treatment

The Insolvency Act provides insolvency administrators with an abundance of tools to challenge any actions committed by a debtor during a crucial period prior to the opening of insolvency proceedings. Two recent Supreme Court decisions summarise the existing judicature and further clarify the elements of avoidance due to preferential treatment.
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Tavernier Tschanz | Switzerland | 20 Dec 2018

Arbitral award against foreign state requires sufficient domestic connection with Switzerland

The Supreme Court recently dealt with the issue of state immunity in the context of the enforcement of an arbitral award and with the relationship between Swiss procedural law and the New York Convention. It found that state immunity prevents the enforcement of an arbitral award against a foreign state if there is no sufficient connection between the claim and Switzerland, and that this......
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William KW Leung & Co | Global | 13 Dec 2018

Enforcement courts' residual discretion under New York Convention: active and passive remedies

The New York Convention and the United Nations Commission on International Trade Law Model Law differentiate between the one-shot principle and the choice of remedies principle. Under the choice of remedies principle, award debtors may choose both active and passive remedies. Therefore, even if an award debtor does not use or pursue active remedies to challenge a preliminary ruling or set......
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Fenech & Fenech Advocates | Malta | 21 Nov 2018

Mortgage amendments – when are they required?

A mortgage over a Malta-flagged vessel may be drawn up to secure the payment of a principal sum and interest, an account current or the performance of any other obligation – including a future obligation – due to a creditor by the debtor. The parties to an underlying security document may enter into negotiations resulting in changes to the terms set out in the security document. The question......
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Elias Neocleous & Co LLC | Cyprus | 6 Nov 2018

Court procedure when enforcing European Account Preservation Orders in Cyprus

EU Regulation 655/2014 recently established a European Account Preservation Order procedure to facilitate cross-border debt recovery. In Cyprus, claimants must file an application for such an order at the district court with jurisdiction over the main dispute. The Cyprus courts have always required appropriate security to be provided for freezing orders and are likely to adopt a conservative......
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Luther Rechtsanwaltsgesellschaft | Luxembourg | 25 Sep 2018

New law on court enforcement of European account preservation orders

The EU European Account Preservation Orders (EAPO) Regulation states that attachment orders must be enforced through the courts in accordance with the procedures applicable to the enforcement of equivalent national orders in the member state of enforcement. As Luxembourg's existing legislation proved to be poorly adapted to the execution of EAPOs, it recently implemented the EAPO Conversion......
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RPC | Hong Kong | 18 Sep 2018

Extending Mareva relief against third parties

In certain circumstances the courts in Hong Kong can extend Mareva relief against a defendant to third parties under the so-called 'Chabra' jurisdiction. In a recent case, the assets which the trustees sought to locate were not directly held by the bankrupt, but appear to have been indirectly held through a family trust and related companies. As before, the court demonstrated its willingness......
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Luther Rechtsanwaltsgesellschaft | Luxembourg | 18 Sep 2018

Court of Appeal rules on loss of credit capacity in bankruptcy

The Court of Appeal recently ruled on the loss of credit capacity in the context of bankruptcy. This was the first time that the availability of company funds in a third-party account was seen as a sufficient reason to avoid the loss of credit capacity. Thus, the court has finally clarified the notion of the loss of credit capacity referred to in Article 437 of the Code of Commerce in a way......
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Hogan Lovells | Mexico | 14 Sep 2018

New judicial guidance reinforces traditional view on trusts

Many loans involve the transfer of assets to a collateral or payment-source trust, especially (but not exclusively) when dealing with cash-generating assets, such as long-term contracts or receivables. A 2016 federal collegiate circuit court decision could jeopardise these structures in the context of insolvency proceedings. However, new judicial guidance was recently issued to reinforce......
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