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The Rise of “Reverse” Vesting Orders in the Canadian Insolvency Regime

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.

Appealability of Discovery Orders Under Chapter 15

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]

A New Perspective on the Recognition of Foreign Insolvency Proceedings in Mexico

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.

Co-Chairs Corner

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.

Download Free Asian Guide on Insolvency

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.

Russia Bondholders Say Debt Default Could Already Be Here

Submitted by jhartgen@abi.org on

Russia could already be in default on some of its foreign currency debts, according to bondholders that claim they are still owed a small interest payment that Moscow didn’t send to them earlier this spring, WSJ Pro Bankruptcy reported. A change in U.S. sanctions on Wednesday is expected to cut off Russia’s ability to stay current on its dollar-denominated sovereign debt, which it has managed to continue servicing since the invasion of Ukraine began. Some investors, though, allege that Moscow has defaulted already by failing to pay about $1.9 million in interest and they have submitted notices of the possible default to bond custodian Euroclear earlier this month. The allegedly overdue payment represents interest that Russia accrued while it spent 28 days in a grace period in April and early May, the documents show. The bond in question matured in early April. Russia didn’t pay its foreign interest for nearly a month, until an 11th hour payment was made. However, some bondholders have said that Moscow forgot to include an estimated $1.9 million of accrued interest that was generated in the interim, which is now overdue beyond the grace period, and they have accordingly informed Euroclear, the records show.

Russia Pays Bond Coupons Ahead of Likely U.S. Payment Block

Submitted by jhartgen@abi.org on

Russian finance officials said Friday that they had pushed through around $100 million in interest payments due under some of the country’s foreign-currency debts, ahead of a likely change in U.S. sanctions next week that is expected to curtail Moscow’s ability to keep paying its sovereign debt, WSJ Pro Bankruptcy reported. Russia’s Finance Ministry said it had submitted roughly $71.3 million due under a dollar-denominated bond due 2026 and 26.5 million euros, equivalent to about $28 million, under a euro-denominated bond due 2036, according to Russian state media agency TASS. Earlier this week, Treasury Secretary Janet Yellen said the U.S. would likely prevent U.S. investors from receiving payments on the Kremlin’s sovereign debt by letting an existing carve-out in sanctions against Russia expire May 25. That exemption has allowed American banks and investors to process and receive bond payments from Russia since the war with Ukraine began in late February. By making payments ahead of next week’s deadline, Russia is likely aiming to delay a default scenario that would arise if it couldn’t get funds into bondholder accounts, according to Timothy Ash, senior sovereign economist at BlueBay Asset Management in London.

Google's Russian Subsidiary to File for Bankruptcy

Submitted by jhartgen@abi.org on

Google’s Russian subsidiary plans to file for bankruptcy, Reuters reported. The U.S. tech firm said Wednesday (May 18) that Russian authorities had seized the unit's bank account. Alphabet’s Google has been under pressure in Russia for months as Moscow wanted it to delete content it viewed as illegal. It was also criticized in the country for restricting access to some Russian media on YouTube. The Kremlin has so far stopped short of blocking access to its platforms. Google said that by seizing its bank account authorities had made it impossible for its Russian office to function. It also published a notice of the unit's intention to file for bankruptcy. Google has stopped the majority of its commercial operations in Russia since February.