Finance

Briefings in English - 2010

The High Court has in the past month ruled on two challenges to company voluntary arrangements (CVAs) on the grounds of unfair prejudice and material irregularity, reaching a different conclusion in each case. This briefing examines the facts and findings of each case and their possible impact on future CVA structures. (August 2010)

The recent case of BNY v Eurosail 1 is an important modern decision on the balance sheet test of insolvency. The High Court considered whether a note issuer was unable to pay its debts within the meaning of section 123(2) of the Insolvency Act 1986 and whether, if the issuer was insolvent, the existence of a post-enforcement call option agreement (PECO) entered into by the issuer would change the court’s analysis. The High Court held that (1) the issuer was not insolvent, (2) ‘taking account of’ contingent and prospective liabilities does not require such liabilities to be aggregated at their face value, (3) the balance sheet test is not necessarily the same as the accounting test and (4) the use of a PECO does not cure balance sheet insolvency. (August 2010)

In the case of Rubin and Lan v Eurofinance SA and others, the Court of Appeal was asked to consider (1) whether foreign proceedings (in this case Chapter 11 proceedings under the US Bankruptcy Code) should be recognised as foreign main proceedings in accordance with the UNCITRAL Model Law on Cross-Border Insolvency (and whether the appointment of the applicants in the case as foreign representatives should be similarly recognised) and (2) whether a judgment of the US Bankruptcy Court against the respondents should be enforced as a judgment of the English courts in accordance with the relevant provisions of the Civil Procedure Rules. The Court of Appeal answered both questions in the affirmative. (August 2010)

In August 2009, the Bank of Italy issued new instructions on the determination of the global average rate (TEG) under the usury law (Law No. 108 dated 7 March 1996). These new instructions have modified the categories of financing arrangements and have also eliminated certain distinctions relating to the type of lender granting the relevant financing. (July 2010)

New amendments allow Russian issuers to establish ‘zero-balance’ depositary receipt programmes. This briefing looks at the conditions that apply when establishing such a programme. (March 2010)

The Financial Services Authority (FSA) published a consultation paper on effective corporate governance earlier this year. The paper reinforces the FSA’s renewed focus on the quality of firms’ governance and sets out proposed changes to the approved persons regime, the FSA’s expectations in relation to non-executive directors (NEDs) and implementing measures in support of Sir David Walker’s recommendations. This briefing examines the key proposals and their likely impact for firms. (March 2010)

The SEC has published guidance to public companies on its disclosure requirements regarding climate change matters. In this briefing we discuss the guidance and its possible implications for reporting companies and suggest a regime of best practice. The briefing also contains an appendix on recent developments in environmental regulation relating to climate change. (March 2010)

On 25 February 2010, the Paris Court of Appeal handed down two much-anticipated decisions confirming that creditors are able to challenge the opening of safeguard proceedings and clarifying the basis upon which safeguard proceedings can be opened by a debtor. (March 2010)

Investment firms have to ensure that their marketing communications are fair, clear and not misleading. On 11 February 2010 the German Federal Financial Supervisory Authority (Bundesanstalt für Finanzdienstleistungsaufsicht – BaFin) published a set of guidelines that will affect marketing by investment firms. (February 2010)

The US Bankruptcy Court has issued a declaratory judgment that the relevant clause flipping priority from the swap counterparty to the noteholders constituted an ipso facto provision and was therefore unenforceable – a judgment that produces a different result under US law to that established by the Court of Appeal in the Perpetual Trustee case from November 2009. The court also held that any attempt to enforce noteholder priority would constitute a violation of the automatic stay under the US Bankruptcy Code. (January 2010)

Since late 2008, the United States has taken the first step towards a national program for high-speed rail by adopting legislation that mandates and partially funds a national rail program. This briefing summarizes this legislation, its current implementation and likely next steps that will shape the growth of high-speed rail in the US over the next several years. (January 2010)

Briefings in Italian - 2010

In forza delle nuove istruzioni dettate da Banca d’Italia nell’agosto 2009 in tema di rilevazione dei tassi effettivi globali medi (TEG) ai sensi della legge sull’usura (legge n. 108 del 7 marzo 1996), sono state modificate le categorie di rilevazione e soppresse talune precedenti distinzioni circa il soggetto finanziatore. (Luglio 2010)

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