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Maximizing value for creditors is one of the paramount objectives of the Canadian insolvency system. Where the value is in a business varies in each situation. Depending on the nature of the business, a debtor company may have crucial licenses or contracts that are not transferrable but are necessary in order to operate. In another example, an entity may have significant tax losses that may be a driver of value, but the path to a successful plan of arrangement is uncertain or the debtor has insufficient resources to pursue a plan of arrangement in Canada.

On March 7, 2022, the U.S. Supreme Court in Estate of Omar Fontana v. ACFB Administração Judicial Ltda.-ME, No. 21-828 (U.S. Mar. 7, 2022), denied a petition for review of a decision by the Eleventh Circuit, In re Transbrasil S.A. Linhas Aéreas, 860 Fed. Appx 166 (11th Cir. 2021). The Eleventh Circuit held that an order denying a motion for a protective order to shield parties from discovery subpoenas in a chapter 15 proceeding was interlocutory and thus not final and appealable. [1]

Mexico adopted the UNCITRAL Model Law on Cross-Border Insolvency (MLCBI) in May 2000, when the current Business Reorganizations Law (Ley de Concursos Mercantiles) (LCM) was enacted. It was incorporated in Title XII of the LCM, which contains essentially the same provisions as the MLCBI, with a few additions. It distinguishes between main insolvency proceedings and non-main insolvency proceedings. The former should take place in the debtor’s center of main interest, and the latter should take place in jurisdictions where the debtor has an establishment.

Welcome to the ABI International Committee’s Spring 2022 Newsletter. We thank all the members of the committee for their continued support, and we encourage you to get involved with the committee over the coming year. Please reach out to us if you are interested in contributing to a future newsletter, have an idea for a conference panel, or just want to get more involved.

The Singapore-based Asian Business Law Institute (ABLI) recently released its Guide on the Treatment of Insolvent Micro and Small Enterprises in Asia in conjunction with the International Insolvency Institute. The guide suggests policy recommendations for the design of an effective insolvency regime for such businesses in Asia, and features a unique tiered approach for Five Key Principles and Six Aspirational Principles. Download the Guide here to read more.

As co-chairs, we thank all of the members of ABI’s International Committee for their continued support and involvement with the committee during this pandemic-dominated year. We also extend a warm welcome to our new members and encourage you to reach out to us or International Committee Membership Chair Kenneth Kraft (Dentons Canada; Toronto) to discuss ways to get more involved with the International Committee.

On Jan. 1, 2021, the Dutch Act on the Confirmation of Private Plans (hereafter referred to by its Dutch acronym, “WHOA,” or the “Dutch Scheme”) entered into force. It represents a robust and flexible restructuring framework. This brief article provides a summary of the Dutch Scheme and an update about the first published cases involving the scheme.

Dutch Scheme Inspired by U.S. Chapter 11 Reorganization Plan

The COVID-19 crisis has encouraged many countries to amend their bankruptcy laws. In many cases, these amendments took place temporarily — especially during the hibernation phase of the pandemic. In other countries, however, the pandemic has led to permanent changes in their insolvency legislations. More importantly, the COVID-19 crisis has encouraged many countries around the world to reassess the desirability of their insolvency and restructuring frameworks.