In collaboration with the Oxford Centre for Competition Law and Policy & Journal of Antitrust Enforcement, the Swedish Network for European Legal Studies (SNELS) invites the public to a workshop in honour of emeritus Professor Steven Anderman at Essex Law School.
Björn Lundqvist (SNELS/Stockholm University) and Hedvig Schmidt (Southampton Law School) will host the workshop which seeks to capture the common theme oriented towards the “big ideas” which kept Professor Steven Anderman’s attention throughout his academic career: ‘competition’ as a means to secure the very basis of the EU’s legal order. Steven has an outstanding talent to place legal problems into a broader context and framework. This is what the workshop would like to retrace in his work, and what the workshop will seek to portray.
The workshop will be held on 26 January 2023 in the Harold Lee Room at Pembroke College, Oxford from 1.20pm-7pm GMT.
For registration and any further questions regarding this invitation, please email the network coordinator Palle Söderberg at palle.soderberg@juridicum.su.se.
Given the economic impact of arbitration activity on a nation’s gross domestic product (GDP), the issue of capital flight was especially concerning.
To this end, the aim of the thesis was dual: first, to ascertain the viability of existing frameworks for commercial arbitration in African emerging markets for the purposes of promoting their reputation as seats of international arbitration; and second, to extend the literature on the African Union’s economic integration agenda that has recently been brought to the fore again by the Agreement establishing the African Continental Free Trade Area (AfCFTA).
In dealing with the problem, Dr. Taiwo set out to investigate the main research question of the extent to which a sector-specific specialist arbitration framework could enhance the right of access to justice.
Using a hybrid methodology and the single case study design, the central argument was that, to the extent that the necessary political will is present, identifying small spaces for reform (especially through specialist arbitration frameworks) and dealing with these issues in chunks is an effective way of progressively improving the parameters of access to justice, building attractive seats of international arbitration in Africa and consequently, contribute to economic and sustainable development.
One of the original contributions the thesis makes is applying access to justice from human rights law to commercial law as a major conceptual basis for the research to address not only arbitration matters but also other issues that parties take into consideration when choosing a seat of arbitration.
The wider significance of the work lies in its ability to not only reinforce the idea that the law is part of the development and should be part of critical sectors like the construction industry but also to inform law and policy for commercial arbitration in emerging markets and international institutions.
The thesis also expands the knowledge base of access to justice and the role it plays in issues beyond the realm of human rights law and discourse.
Dr. Taiwo plans to publish journal articles from her thesis to further explore the theme of the interplay of commercial dispute resolution and human rights for sustainability, and pathways to effective regionalisation through commercial arbitration in Africa.
James Griffin (Associate Professor, University of Exeter), Onyeka Osuji (Professor, University of Essex), and Hing Kai Chan (Professor, Nottingham University Business School China) have developed a digital watermarking technology that enables the tracking and tracing of 3D Printing (3DP) content, from its creation through to its destruction.
A watermark is embedded into creative content; the team’s research made the technology easier to implement and difficult to remove, thus enabling new forms of 3DP works.
The technology was successfully demonstrated operating at a conference in China in 2017 and received widespread and acclaimed international press and television coverage. It has been granted a patent in China in August 2020.
The research team’s next task, with James Griffin as principal investigator in the impact follow on research, is to develop the technology further for implementation into licensing systems. They will do this with two China-based companies. The AHRC awarded Griffin, Osuji, and Kai Chan £65,774 for the project.
Professor Osuji’s role is mainly to apply contract law to 3D printed watermarks, provide training sessions concerning contracts and lead the development of the best practice code.
Attaching the technology to an existing licensing platform will allow for the use of 3DP content in new creative ways, leading to new artistic forms. For example, the technology could be attached to 3DP materials themselves, resolving an ongoing problem in ensuring the quality of materials that are used for printing. This could allow for more complex artistic works; it could even lead to organic works involving 3DP biological material.
The technology would open up new markets, even overcoming existing regulatory hurdles. This is because the technology would enable right holders to guarantee sources of materials and can be used to check if the structure of a 3DP object has changed internally.
Dr Anna – Mari Antoniou, Lecturer in Maritime and Commercial Law, has been appointed as the UK’s special national rapporteur at the International Academy of Comparative Law’s (IACL) General Congress, which will take take place in Asunción, Paraguay in 2022.
Dr Antoniou will be representing the United Kingdom for Trade Finance and her report deals with Topic IV of the Congress: ‘The Effectiveness of International Legal Harmonisation through Soft Law – UCP600’. It discusses the UK’s approach to several trade finance issues, including how courts, arbitral tribunals and financial institutions solve recurring problems in documentary credit contracts.
The report’s most significant contribution is an investigation and analysis of two current problems: first, how the COVID-19 pandemic has affected the industry and supply chains; and second, the way the pandemic has forced the issue of digitisation of trade finance.
It discusses the Law Commission’s Electronic Trade Documents project, which is in the consultation phase, and if the proposed draft Bill is adopted by Parliament, electronic transport documents will become a reality.
Dr Antoniou’s report looks at the issue both from a practical perspective and a legal perspective; international trade is worth £1.153 trillion to the UK so an incredibly significant amount is reflected in this report.
Moreover, the legal issues discussed are an excellent example of how the law needs to be updated to reflect the commercial reality. COVID-19 has highlighted other failings in the trade system, but has also emphasised the need for electronic alternatives for an industry deeply rooted in paper-only transactions.
Dr Antoniou’s preliminary report was submitted on 31 August 2021 with final reports due November 2021.
On 30 June 2021, the Society of Legal Scholars (SLS) announced that Dr. Eden Sarid, Lecturer in Law at the University of Essex, was one of the winners in its Make the News competition for his project Freeing Our Cultural Treasures from a Copyright Limbo.
The SLS’ competition presents early career researchers with a unique experience to learn more about getting your research noticed by a wider audience. A meeting will now be scheduled for all four of the winners to make their pitches to the judging panel of Catherine Baksi (The Times and The Guardian), Joshua Rozenberg QC (BBC, Law Society Gazette) and Thom Brooks, the SLS President.
In a statement to our Research Blog, Dr. Sarid explained that his project:
‘aims to propose a novel solution to a major copyright challenge, of orphan works. Orphan works are items – such as photos, music, or books – which are subject to copyright, but whose copyright owners cannot be located and therefore permission to use the works cannot be granted. Currently in the UK, a limited licensing scheme results in millions of orphan works remaining unavailable to the public. Based on a theoretical examination of copyright justifications, the project advances a framework that will allow public access to these works.’
Look out for Dr. Sarid making the news in coming weeks and months!
The book examines the different ways non-state rules are applied in international commercial contracts with the aim to understand the legal authority of non-state rules. To do so, the book analyses:
The rule of non-state rules in international commercia law;
The role of non-state rules in international commercial contracts;
The application and interpretation of non-state rules.
Non-state rules can be defined as those rules which come from a source other than the state. This includes uncodified rules (trade usages and general principles of law) and codified rules (restatements of law, model laws, model contract clauses and guidelines). They are, in principle, not binding and they either need to be contracted into or can be contracted out of. The concept of non-state rules is wider than the lex mercatoria which consists of trade usages and practices by merchants and general principles of law, but would not include rules codified by international organisations and trade associations.
The contracting parties in an international contract might be faced with uncertainty and unpredictability as to the applicable law and its content. For at least one of the parties’ choice of law often means the application of a foreign law with sometimes unforeseen consequences. To escape the unpredictability of a foreign law, to create a level playing field between the contracting partners if they cannot agree on the applicable law, or because they prefer a neutral law, the parties might choose non-state rules as the governing law of the contract. Whilst such a choice is usually permitted in arbitration, it is only rarely permitted in litigation. Private international law in most jurisdictions allows the parties to include non-state rules as contractual terms or by reference, but limits choice of governing law to state laws.
Examining the role of non-state rules, beyond being the governing law of the contract, shows that they are frequently used by courts and arbitral tribunals to interpret either the contract or the applicable law. Interestingly, this is frequently done even when the parties have not included a reference to non-state rules in the contract. This can be done to either fill gaps in the contract, to show the compatibility of the applicable law with transnational commercial practice, or to interpret the contract in light of the principles of transnational commercial law. Courts and arbitral tribunals are thus taking a leading role in shaping how non-state rules are used.
This book examines these different ways in which non-state rules are applied in order to understand how this affects their legal authority. By studying the application of non-state rules, it can be understood what role they play in domestic law, what support they have from the international business community, and the position they have in courts and arbitral tribunals.
Published on 16 Mar. 2021 by Routledge
This book demonstrates how non-state rules have legal authority as the applicable law to the contract, as sources of (domestic) law, as legal doctrine/scholarship, and as terms of the contract. They can be considered as law, rules of law, contractual rules, and/or normative practices depending on the situation.
Dr. Hoekstra’s book thus gives a practical overview of different types of non-state rules and their role in international commercial law, and contributes to the theoretical discussion by analysing several key issues related to the legal authority of non-state rules.
England is no stranger to strategic or – at times – abusive use of insolvency provisions.
In the early 2000s, a mechanism frequently used by debtors to retain the control of distressed companies at the expense of their creditors was pre-packaged administration. Following some empirical studies and a public consultation, the Coalition Government introduced some changes to the insolvency system to address the concerns from the industry and practitioners. Yet, it seems that Parliament will have to turn again its attention to similar issues in the not-so-distant future.
In fact, the recent case of Virgin Atlantic, which filed for Chapter 15 protection in the USA to shield itself from the claims of its creditors, as well as other trends in the rescue practice, bring back to the fore the ongoing issue of strategic or abusive use of insolvency provisions.
This blog post briefly discusses whether, and the extent to which, we should be worried by these growing trends in the rescue “industry”.
Pre-Packaged Administrations
Pre-packaged administrations are a hybrid form of corporate rescue. These procedures combine the benefits of informal workouts with the properties of formal procedures.
In a pre-packaged administration, the sale of the distressed business is negotiated before the debtor files for insolvency. Usually, the buyer is a person connected to the debtor’s existing shareholders, sometimes even the existing shareholders or directors. The sale is effected shortly after the debtor files for insolvency, leaving the creditors with no remedies and abysmally low returns for the money they lent to the debtor.
In a paper published at the beginning of this year,[1] Dr. Vaccari identified the characteristics that make a pre-packaged administration abusive. This happens when the sale is determined by a close group of players, who collusively act solely to sidestep or subvert insolvency rules and extract value from the company. To be abusive, such actions should cause undue financial harm to the creditors and fail the “next best alternative” valuation standard.
Conscious of the risks associated with pre-packaged administrations, the Coalition Government launched a study into these proceedings which resulted in the Graham Review (2014) as well as in minor regulatory changes. Some of the industry-led measures introduced following the Graham Report are currently under review. The recently enacted Corporate Insolvency and Governance Act 2020 introduced an extension[2] to end of June 2021 to the power to legislate on sales to connected persons, which was granted by the Small Business, Enterprise and Employment Act 2015 (‘SBEEA 2015’) but expired in May 2020.
It seems accurate to claim that the risks of abusive use of pre-packaged administrations, especially in sales to connected parties, have been significantly curtailed since the regulatory and industry-led changes introduced in 2015. Nevertheless, shareholders and directors have not embraced overnight a new, more inclusive and stakeholder-oriented approach to the management of corporate crises. As a result, the rescue industry has developed new mechanisms to sidestep and at times subvert insolvency rules, for the purpose of promoting the interests of out-of-money players (such as shareholders and directors) at the expense of the residual claimants in insolvency (i.e. secured and unsecured creditors).
Recent Trends
Some recent, high profile cases show the emergence of new trends in corporate rescue practice, designed to sidestep or subvert insolvency rules. These trends are light-touch administrations (LTAs), temporary stays on creditors’ claims – sometimes effected internationally – and reverse mergers.
In LTAs, administrators rely on paragraph 64(1), Schedule B1 of the Insolvency Act 1986 to allow the existing directors of an insolvent company to continue exercising certain board powers during an administration procedure. This practice, however, undermines one of the pillars of the English corporate insolvency framework, i.e. that those responsible for the debtor’s failure are not allowed to run the company in insolvency. The idea behind this choice is that independent insolvency practitioners are better placed than existing directors to protect and promote the interests of creditors as a whole, without necessarily affecting the chances of the debtor to be rescued or sold on a going concern basis.
In LTAs, the existing directors are not free to do whatever they want. Directors usually sign with the administrator a consent protocol, prepared by the Insolvency Lawyers Association and the City of London Law Society. Such a protocol introduces restrictions to the use of directors’ powers in order to safeguard the interests of other creditors and stakeholders. However, in a recent article yet to be published,[3] Dr. Vaccari conducted a doctrinal analysis of the guidance provided by the courts in running LTAs and concluded that the interests of unsecured creditors are unduly affected by these procedures.
The recent events in Debenhams’ restructuring support the early findings in Dr. Vaccari’s article. Debenhams became the first high street business in the UK to enter a LTA process in April 2020, after sales plummeted under the nationwide lockdown. To date, Debenhams’ lenders and owners are “highly supportive” of the LTA process and are funding the administration fees. The process is likely to result in a sale of the profitable assets of the business by the end of September 2020.
So, all good? Not really. In the meanwhile, Debenhams is not paying its landlords and suppliers, with the exception of essential ones. Many workers are paid by the Government (and the taxpayers) through the Job Retention Scheme. Also, this LTA represented the third time the retailer underwent some form of insolvency procedure in less than a year. Earlier attempts included a pre-packaged administration after rejecting financial support from Sports Direct’s owner Mike Ashley and a company voluntary arrangement.
In other words, Debenhams is a “zombie” business, something out of The Walking Dead. It has already been killed several times by the market; it is a failed business, yet it is still operating for the benefit of existing shareholders and directors.
Debenhams is not the only recent case of strategic use of insolvency provisions. After the rejection of a bailout request by the UK Government, Virgin Atlantic worked on a £1.2 bln rescue deal with some of its shareholders and private investors to stave off collapse. It is likely that the negotiations will go ahead – despite the shaky financial situation of the company – thanks to a moratorium or stay on executory actions by the creditors. This moratorium is one of the innovations introduced by the Corporate Insolvency and Governance Act 2020[4] and it has been used as part of a restructuring plan procedure under the newly introduced part 26A of the Companies Act 2006.
However, Virgin Atlantic has assets all over the world. In order to protect them from executory actions, the company sought recognition of the English stay under Chapter 15 of the U.S. Bankruptcy Code. Chapter 15 is a part of the U.S. Bankruptcy Code designed to facilitate cooperation between U.S. and foreign courts. It was added to the code in 2005 by the Bankruptcy Abuse Prevention and Consumer Protection Act, and it allows foreign individuals or companies to file for bankruptcy protection in the U.S. in cases where assets in more than one country are involved. When the order is granted, it is usually recognised all over the world, thus protecting the debtor’s assets against creditors’ predatory actions.
Often, Chapter 15 is filed in conjunction with a primary proceeding brought in another country, typically the debtor’s home country. However, no such proceeding has been opened with reference to Virgin Atlantic. The restructuring plan mentioned above is a company, rather than an insolvency procedure, which means that creditors are less protected than in insolvency. The effect of the Chapter 15 filing is, therefore, to give world-wide recognition to a private agreement negotiated by the company’s directors and key creditors with the support of existing shareholders. A vote on the plan from the wide range of creditors who have legitimate claims against the company will not take place until late August, with a confirmation hearing scheduled for the beginning of September. As a result, the outcome of the Virgin Atlantic case is not dissimilar from Debenhams’ one: the claims of out-of-money shareholders and directors are prioritised against the legitimate interests, rights and claims of other, less sophisticated creditors.
Finally, a practice that it is emerging with renewed preponderance is the use of “reverse mergers” or “reverse takeovers”. A reverse merger is a merger in which a private company becomes public by acquiring and merging with another public company. If the public company files for insolvency first, sells all its assets but keeps its legal standing, the private buyer can go public by merging with the public, insolvent company. In this way, the private buyer avoids the complicated and expensive compliance process of becoming a public company by merging with the insolvent, public debtor. Additionally, all licences, permits, quotas, clearances, registration, concessions etc. conferred on the insolvent debtor will continue with the buyer despite the changing of hands of the controlling interest.
This may, in theory, seem a good idea to maximise the value of the insolvent debtor. Ultimately, the debtor’s listing in the stock exchange (and its public nature) is an asset. What’s wrong in selling it?
First and foremost, the fact is that compliance regulations are sidestepped. Unlike a traditional Initial Public Offering (IPO), reverse merger disclosure documents are generally not reviewed by securities commissions; only by the exchange on which the two companies propose to list. Although this reduces the regulatory burden on issuers, it also dispenses with an important element of investor protection.
These regulations are not simply procedures designed to make life difficult to companies that want to go public. These are procedures designed to protect investors and, ultimately, creditors.
Additionally, another reason to opt for a merger rather than a purchase is if the target company has significant net operating losses that the buyer might be able to use to reduce its tax liabilities. Finally, reverse mergers do not necessarily require concurrent or any kind of financing, as they can take place with a share exchange.
In the U.S. the process has been used by several companies, particularly by start-ups in the automotive sector. These include Nikola Motors, Lordstown, Fisker Automotive, Velodyne Lidar and bus-maker Proterra. At the time of writing, Nikola Motors has a stock exchange value exceeding US$2 bln, while Lordstown has a stock market value of US$1.6 bln. If you haven’t heard these names before, you’re not the only one. Both Nikola and Lordstown have yet to produce their first (electric) vehicle!
It is not surprising that all these companies relied on reverse mergers to go public. Reverse mergers involve less regulatory scrutiny, are cheaper in terms of professional and other expenses, faster than a traditional IPO and able to avoid or minimize market and execution risk on their going-public transactions. Which, ultimately, brings us to the question: are reverse mergers of an insolvent public company a trick or a threat for the debtor’s stakeholders?!?
What’s Next
The Government should respond promptly to these new trends emerging from practice. The commitment to promoting a rescue culture and – more generally – the rescue of distressed yet viable businesses cannot come at the expense of “everything else”. Cases like Debenhams, Virgin Atlantic and the U.S. listing of automotive start-ups suggest that the market is unable at the moment to self-regulate.
The Covid-19 pandemic accelerated a trend towards the strategic or abusive use of insolvency provisions. If unchecked, this trend can only result in more insolvencies and higher taxes.
If suppliers are not paid, the above-mentioned insolvencies will create a domino effect in the industry and they will result in further filings. As for taxes, Dr. Vaccari mentioned in a previous blog post that the re-introduction of the Crown preference is expected to increase the returns to the HMRC. However, higher numbers of insolvency procedures and a downturn of the economy are likely to affect the capacity of companies to generate revenue and – as a result – to pay taxes. If companies pay less taxes and the Government is forced to spend more in subsidies to companies and employees, this is likely to result in cuts to public services and higher rates of taxes for people and companies alike.
The publications mentioned in this article are available on Westlaw, Researchgate.net and Academia.edu. Dr. Vaccari regularly discusses insolvency matters on Twitter and LinkedIn.
[1] E Vaccari, ‘English pre-packaged Corporate Rescue Procedures: Is There a Case for Propping Industry Self-Regulation and Industry-Led Measures such as the Pre-Pack Pool?’ (2020) 31(3) I.C.C.L.R. 170, 184-185.
[3] E Vaccari, ‘Corporate Insolvency Reforms in England: Rescuing a “Broken Bench”? A Critical Analysis of Light Touch Administrations and New Restructuring Plans’ (2020) I.C.C.L.R. (forthcoming).
In corporate insolvency procedures, not all creditors are alike. This is despite the pari passu principle.
The pari passu principle is often said to be a fundamental rule of any corporate insolvency law system. It holds that, when the proceeds generated by the sale of debtor’s assets are distributed to creditors as part of an insolvency procedure, they have to be shared rateably. In other words, each creditor is entitled to a share of these proceeds that corresponds to the percentage of debt owed by the company to its creditors.
Imagine that a company has creditors for £100,000. Creditor A has a claim for £1,000, creditor B for £5,000. The company is insolvent and it is liquidated. The sale generates £50,000 of proceeds available to be distributed to the creditors. While it would have been possible to say that, for instance, older creditors or creditors with larger claims are paid first, the pari passsu principle states that all creditors are treated alike. As a result, creditor A will receive 1% of these proceeds (£500), while creditor B will receive 5% of them (£2,500).
There are, of course, exceptions to the pari passu principle.
First, the pari passu principle applies only to assets that are available for distribution. For instance, a bank may have granted a mortgage to the debtor to buy a property, and the debtor may have given that property as a collateral to the bank. If the debtor becomes insolvent, the proceeds generated by the sale of that property are distributed first to the bank and then, if anything is left, to the other creditors.
Secondly, the law might introduce exceptions to this principle in order to prioritise the payment to creditors that are deemed particularly worthy of additional protection.
The Law
Until the Enterprise Act 2002, the Inland Revenue and HM Customs & Excise (now HMRC) were granted a status as preferential creditors for certain debts listed in Schedule 6 of the Insolvency Act 1986. As a result, debts owed to the them had to be fully paid before any distribution to floating charge holders, pension schemes and unsecured creditors (among others) was made.
This preferential status granted these agencies a stream of £60-90 million each year in insolvencies. Section 251 of the Enterprise Act 2002, however, abolished the Crown’s status as preferential creditor and introduced a new regime (the ‘prescribed part’) wherein a portion of the distributions in liquidation was ring-fenced specifically for unsecured creditors.
Back in the 2018 Budget, mixed in with many other tweaks, the Government announced a seemingly innocuous change to the way in which business insolvencies will be handled from 6 April 2020 (later postponed to insolvencies commencing on or after 1 December 2020, irrespective of the date that the tax debts were incurred or the date of the qualifying floating charge).
Without attracting much publicity, the announced move was codified in sections 98 and 99 of the Finance Act 2020, which received Royal Assent on 22nd of July 2020. As a result, HMRC gained secondary preferential treatment over non-preferential and floating charge holders – often banks that have loaned money to firms – for uncapped amounts of VAT, Pay As You Earn (‘PAYE’) income tax, student loan repayments, employee National Insurance Contributions (‘NICs’) or construction industry scheme deductions.
In a related development, Parliament also approved the Insolvency Act 1986 (Prescribed Part) (Amendment) Order 2020. The effect of this Act is to increase the prescribed part from £600,000 to £800,000. However, this change does not apply to floating charges created before 6 April 2020.
So What?
The Government argues that giving HMRC priority for collecting taxes paid by employees and customers to companies is appropriate. These represent taxes that are paid by citizens with the full expectation that they are used to fund public services. Absent any form of priority, this money actually gets distributed to creditors instead. As a result, the Exchequer should move ahead of others in the pecking order and give HMRC a better chance of reclaiming the £185m per year they lose.
These explanations do not appear totally sound. The creation of the prescribed part and the increase of its cap to £800,000 served the purpose of ensuring that at least some of this money is paid back to the HMRC and used to fund public services. What has not been properly considered is the impact the Crown preference and the increased prescribed part will have on: (i) the wider lending market and access to finance; as well as (ii) corporate rescue practices.
With reference to lending practices, the new system disproportionately affects floating charge holders and unsecured creditors. The abolition of administrative receivership – a procedure controlled by lenders – by the Enterprise Act 2002 was compensated by the loss of preferential status for the HMRC. The re-introduction of such preference means that lenders in general and floating charge holders in particular will be pushed to lend money at higher interest rates, as lenders have no idea as to the tax arrears of any borrower on a day to day basis.
Lenders now face a double blow (increased prescribed part and Crown preference) in relation to realisations from the floating charge. They are, therefore, likely to reduce the amounts that they lend to businesses, to take account of the dilution in the realisations that they would receive in insolvency. This is a particularly unwelcome outcome in the current marketplace.
Lenders are even more likely to seek fixed charge (where possible) and to introduce covenants for reviewing the debtor’s tax liabilities. Such liabilities are likely to increase significantly in the next few months, as VAT payments due by businesses between March and June 2020 have been deferred until the end of the 2020/21 tax year. Lenders may also insist that a borrower holds tax reserves to deal with liabilities to HMRC and, in large operations, on group structures which minimise the dilution from Crown preference.
Finally, unsecured creditors may choose to protect themselves by keeping their payment terms as tight as possible and limiting the number of days that credit is offered for.
Additionally, and perhaps more importantly, such move may hamper the willingness to support an enterprise and rescue culture, which was the main justification for the abolition of the Crown’s preference. This is because HMRC’s gain is the other creditors’ loss, especially considering that the taxes classified under the preferential claim are ‘uncapped’ (while before the enactment of the Enterprise Act 2002 they were capped to amounts due to up to 1 year before the commencement of the procedure).
Despite assurances to the contrary, the existence of a preferential treatment may push the HMRC to exercise increased control over the insolvency process and promote early petitions for liquidation in the hope of higher return.
Also, the HMRC has never historically been particularly supportive of reorganisation efforts. This means that distressed companies may have to file for a new restructuring plan under part 26A of the Companies Act 2006 and seek a court-approved cross-class cram-down to overcome the HMRC’s negative vote. Such an approach would increase cost, litigation and time needed for the reorganisation effort, thus potentially pushing viable debtors out of business.
There are other elements that militate against the re-introduction of such preferential status. HMRC currently have the ability to robustly manage their debt. HMRC have powers not available to other unsecured creditors, including the ability to take enforcement action without a court order to seize assets and to deduct amounts directly from bank accounts.
HMRC have the power to issue Personal Liability Notices to corporate officers for a failure to pay National Insurance Contributions (NICs) or future unpaid payroll taxes. HMRC also have the power to insist on upfront security deposits where there is a genuine risk of non-payment of PAYE, NICs or Value Added Tax (VAT). Similarly, HMRC may issue Accelerated Payment Notices for disputed tax debts.
One of the key features of the English corporate insolvency framework is its focus on promoting business rescue and, more in general, a rescue culture, as evidenced in previous papers[1] by the author of this post. The recent long-term changes introduced by the Corporate Insolvency and Governance Act 2020 seemed to go in the direction of strengthening the rescue attitude. It makes, therefore, little sense to introduce policies designed to help businesses survive the Covid-19 pandemic and, at the same time, reduce their ability to borrow cheaply. The re-introduction of the preferential status for certain unpaid taxes spins the clock back to 2003 and is likely to hurt the existing, fragile business recovery.
The publications mentioned in this article are available on Westlaw, Researchgate.net and Academia.edu. Dr. Vaccari regularly discusses insolvency matters on Twitter and LinkedIn.
[1] E Vaccari ‘English Pre-Packaged Corporate Rescue Procedures: Is there a Case for Propping Industry Self-Regulation and Industry-Led Measures such as the Pre-Pack Pool?’ (2020) 31(3) I.C.C.L.R. 169; E Vaccari, ‘Corporate Insolvency Reforms in England: Rescuing a “Broken Bench”? A Critical Analysis of Light Touch Administrations and New Restructuring Plans’ (2020) I.C.C.L.R. (accepted for publication); E Vaccari, ‘The New ‘Alert Procedure’ in Italy: Regarder au-delà du modèle français?’ (2020) I.I.R. (accepted for publication).
Failure is a fact of life in any sphere of human activity.[1] Each individual can share stories of their personal failures in life. Some of these failures make us stronger, more successful and resilient in the long run.
Beside events that only affect us in the personal sphere, there are other more “tangible” failures, which affect our profession, assets and capacity to generate income.
In this respect, companies are no different from human beings. Companies – even successful ones – may fail to invent, launch and promote a new product on the market or simply generate enough cash to cover development costs of a product that otherwise met the consumers’ favour. If failure is not limited to a single product, it may threaten the survival of the company.
However, failure may also be determined by external factors, such as a sudden lack of demand from the consumer’s side (as in the aftermath of the Covid-19 pandemic) or an unexpected increase in interest rates. These external factors – either alone or coupled with other causes – may push a company into a formal insolvency proceeding.
More frequently than not, companies that are pushed into insolvency for the pressure exerted by external factors may still be viable. Yet, the only people who have the expertise and knowledge, as well as the courage to invest in a failing business, are usually the existing owners and directors of the ailing company.
Under English law, one of the most popular methods by means of which existing owners buy back an insolvent company, thus preserving its core business and as many jobs as possible, is called pre-pack administration (‘pre-pack’).
In a “pre-pack”, a prospective buyer and key creditors conclude an agreement on the sale or restructuring of the company in advance of statutory administration procedures. In a “connected pre-pack”, the buyer is usually the seller – the owners buy back a significant portion of the company minus a sizeable amount of its existing debt.
Clearly, connected pre-packs raise issues of transparency, fairness and valuation of the debtor’s assets. Creditors may feel that they are paid a pittance while the existing owners are set free without punishment and retain the control of assets that could have generated more money if liquidated in a competitive procedure, such as through a properly advertised auction procedure.
To allay the fears of disgruntled creditors, the Government introduced in 2015 the Pre-Pack Pool (‘the Pool’). The Pool is an independent body of experienced business people that gives an opinion on whether the connected pre-pack sale is reasonable and in the best interests of creditors.
The Pool has proven effective in dealing with connected pre-packs, as evidenced by the most recent sale of Go Outdoors. In this case, the debtor was sold back by its previous owner JD Sports by means of a deal cleared by the Pool in less than 24 hours. The Pool has risen to prominence, to the extent that it has been taken as a model for recent innovations in other jurisdictions, such as the business panel in Italian alert procedures. Dr. Vaccari is working on a paper (due to be published in August 2020 in the International Insolvency Review) which will disclose the links between the English Pool and the Italian panel.
Furthermore, Dr. Vaccari has already analysed in two recent articles [2] the reasons behind the low uptake rate of this voluntary measure (less than 10% of eligible cases are referred to the Pool) and how the Pool should be reformed to deal more effectively with the risks associated with connected pre-packs.
The Corporate Insolvency and Governance Act 2020, which came into effect on 25 June 2020 (‘the Act’), presented the perfect opportunity to deal with the issues associated with connected pre-packs. It is, however, disappointing to see that the Government and Parliament have turned a blind eye on connected pre-packs and have been deaf to the requests from the industry to make the referral to the Pool compulsory in these procedures.
The Act includes several measures that are likely to make the English framework more rescue-oriented and efficient, such as a new restructuring procedure and the ban on the enforceability of ipso facto clauses. Unfortunately, no ink was spilled for a very useful mechanism on the brink of collapse.
It is to be hoped that the Pool’s latest cry for help will not end up in being a late pious expectation of salvation by means of Parliamentary intervention. There are valid reasons to believe that such an intervention is forthcoming, as section 8 of the Act revives the Government’s power to review connected pre-packs and related instruments, included the Pool. This power, originally granted by the Small Business Enterprise and Employment Act 2015, lapsed in May 2020 but has now been extended to the end of June 2021.
The publications mentioned in this article are available on Westlaw, Researchgate.net and Academia.edu. Dr. Vaccari regularly discusses insolvency matters on Twitter and LinkedIn.
Notes:
[1] V Finch and D Milman, Corporate Insolvency Law: Perspectives and Principles (3rd edn, CUP 2017) 123.
[2] E Vaccari, ‘Pre-Pack Pool: Is It Worth It?’ (2018) 29(12) I.C.C.L.R. 697; E Vaccari ‘English Pre-Packaged Corporate Rescue Procedures: Is there a Case for Propping Industry Self-Regulation and Industry-Led Measures such as the Pre-Pack Pool?’ (2020) 31(3) I.C.C.L.R. 169.
I. The Corporate Insolvency and Governance Act 2020
On 25 June 2020, the Corporate Insolvency and Governance Act 2020(‘the Act’) completed its progress in the Parliament and received Royal Assent. The Act has unanimously been hailed by the insolvency community as the most significant regulatory reform in the United Kingdom in the past 20 years.
The Act represents the culmination of a debate on regulatory reforms commenced in 2016 and continued in 2018. This debate was made more urgent by the need not to fall behind the European Union and by the inadequacies of the system evidenced by recent corporate scandals (Carillion) and systemic failures (airline industry).
While some of the measures are the result of long-planned reforms the Government has previously consulted upon, some changes are temporary in nature and they are designed to provide companies with the breathing space and flexibility needed to deal with the economic impact of the Covid-19 pandemic.
This blog-post briefly discusses the relevance and impact of the time-limited measures introduced by the Act. The Act’s long-term regulatory reforms were discussed in a separate post here.
II. Time-Limited Measures
The most significant changes affecting insolvency rules are: (i) a suspension of statutory demands and restrictions on winding-up petitions;[1] (ii) a suspension of liability for wrongful trading;[2] and (iii) an extension to end of June 2021 to the power to legislate on sales to connected persons, which was granted by the Small Business, Enterprise and Employment Act 2015 (‘SBEEA 2015’) but expired in May 2020.[3]
The Act also allows for temporary flexibility regarding other administrative burdens, such as the holding of annual general meetings (AGMs) and filing requirements. These temporary measures, however, fall outside the remit of this blog-post as they do not deal with insolvency provisions.
With reference to statutory demands and winding-up petitions, the Coronavirus Act 2020 introduced a moratorium on commercial landlords to enforce the forfeiture of commercial leases for unpaid rent. This measure was designed to protect companies unable to trade during the lock-down period introduced by the Government to limit the spread of Covid-19.
However, landlords sidestepped this original ban by serving statutory demands on businesses followed by winding-up petitions. The Corporate Insolvency and Governance Act 2020 addresses this loophole by introducing temporary provisions to void statutory demands made between 1 March and 30 September 2020.
Statutory demands can still be served as this may trigger a termination clause under an existing contract. However:
service of a statutory demand without the treat of a winding-up petition is of limited benefit;
defaults in debtor’s facility documents or commercial contracts are usually equally triggered by ordinary as opposed to statutory demands;
even if these clauses are triggered, the creditor might still not be able to enforce the termination as such option might be prevented by the newly enforced ban on ipso facto clauses discussed here.
The Act also restricts winding-up petitions based on statutory demands from 27 April to 30 September 2020. For the same period, it also prevents creditors from presenting a winding-up petition unless they have reasonable grounds to believe that: (a) the Covid-19 pandemic has not had a “financial effect” on the debtor company; or (b) the facts by reference to which the relevant ground applies would have arisen even if the Covid-19 pandemic had not had a financial effect on the company.
These temporary measures are intended to prevent aggressive creditor actions against otherwise viable companies that are struggling because of the consequences of the Covid-19 pandemic.
As mentioned before, creditors can still commence a winding-up petition if they prove that the Covid-19 pandemic had no “financial effect” on the debtor. This bar is very low, as in virtually all sectors of the economy the Covid-19 pandemic produced financial effects on the debtors. This is particularly true for the worst affected sectors, such as the airline industry, non-essential retail, hospitality and leisure sectors (where revenue has been nil or restricted as a result of the lockdown and social distancing measures). Still, creditors may be able to submit a winding-up petition based on aged and undisputed debts that pre-date the Covid-19 pandemic.
As for the suspension of liability for wrongful trading, the Act suspends the liability arising from wrongful trading (sections 214 and 246ZB of the Insolvency Act 1986) in the period 1 March to 30 September 2020.
Under wrongful trading provisions, directors face personal liability on debts incurred by their company. This is, if they decided to continue trading while they knew or ought to have known that the company was unlikely to avoid entering insolvent liquidation or administration. For directors who may have previously rushed to liquidate their businesses with these provisions in mind, this suspension should help delay that process.
III. Preliminary Assessment
There is no doubt that the Act complements the Coronavirus Act 2020 with a series of more measures designed to provide companies with the much-needed temporary relief to cope with the impact of the Covid-19 pandemic.
However, all that glitters is not gold.
With reference to the use of statutory demands and winding-up petitions, the Business Secretary originally advocated for the introduction of these measures to safeguard the UK high street against aggressive debt recovery actions during the Covid-19 pandemic (Alok Sharma, 23 April 2020). However, the temporary provisions as enacted are not sector specific. They apply to any registered or unregistered company that can be the subject of a winding-up petition. They also apply in relation to any debt owed by a debtor company, not just rent or other commercial lease liabilities. As a result, there is the risk that this temporary protection is used in a strategic manner by otherwise non-distressed firms as a leverage in negotiations with their creditors, in order to reduce outstanding and future liabilities arising from ongoing executory contracts.
Additionally, while the Act does not introduce a blanket ban on presenting winding-up petitions, the Government, some professionals and non-specialist publications are suggesting the contrary, thus causing potential confusion in the business community.
The Act also provides that if a winding-up order has been made in relation to a debtor in the period between 27 April 2020 and the day before the Act came into force, the order is void if it does not meet the new requirements for the making of an order. The retrospective nature of this provision can lead to significant challenges in practice. For instance, if the procedure has already commenced, it is not clear what happens to the debts incurred during the procedure, as they normally enjoy a super-priority status. However, it is expected that few orders were made on this basis in the past few weeks, as the judiciary was aware of the content of the Bill and enforced a ban on winding-up petitions before the Act was passed.[4]
Dr. Vaccari has already evidenced in a paper published by the University of Essex[5] and at the St Petersburg’s International Legal Forum the limits of the other, most significant temporary measures introduced by the Act, i.e. the suspension of liability for wrongful trading.
The comments made in the House of Lords debates indicate that the Government was aware of some of the limits evidenced in the above-mentioned papers. The Government stressed in these debates that its intention is that there should be no liability for wrongful trading until 30 September 2020. However, under the Act courts are only instructed “to assume that the [director] is not responsible for any worsening of the financial position of the company or its creditors that occurs during the relevant period”.[6] Therefore, applicants may still seem to have the power to demonstrate that the directors acted in breach of the wrongful trading provisions as outlined in sections 214 and 246ZB of the Insolvency Act 1986 for actions taken before the end of September of this year.
The Act does not affect the several other provisions. These include the rules on fraudulent trading[7] and transactions defrauding creditors,[8] on undervalue or preferential transactions,[9] as well as the director disqualification regime[10] and the general directors’ duties.[11] All these rules, therefore, continue to apply. Particularly, the common law duty of directors to give consideration to the interests of creditors when a company is in the zone of insolvency[12] is preserved and remains in full force.
Sections 12(3) and (4) of the Act clarify that the suspension of liability for wrongful trading does not apply to a variety of companies. These include (among others) insurance companies, banks (including investment banks and firms), building societies, friendly societies, credit unions, public-private partnership project companies and overseas companies with corresponding functions. In other words, a good deal of medium and large enterprises are excluded from the scope of this provision without any apparent justification.
Additionally, unlike the provisions on statutory demands and winding-up petitions, the rules on wrongful trading state that there is no requirement to show that the company’s worsening financial position was due to the Covid-19 pandemic.
The Act adopts a blanket approach: liability for losses incurred in the relevant period is waived, irrespective of whether the losses are incurred because of the Covid-19 pandemic. This blanket approach raises issues of potential abuse of the law if the office holders cannot hold the directors accountable for losses that are not caused by the Covid-19 pandemic.
As a result of all these considerations (and the others mentioned in the publication cited above), a measure in theory designed to “remove the threat of personal liability” caused by the Covid-19 pandemic on businesses (Alok Sharma, 28 March 2020) is likely to lift significant restrictions on the arbitrary exercise of powers by rogue directors. This is likely to significantly and negatively affect creditors’ rights and the rule of law. It is highly unlikely that the suspension of liability for wrongful trading results in being a “jail-free card” (although it is salient to note that we are discussing civil, as opposed to criminal, liability issues).
A final contentious aspect is represented by the power granted to the Secretary of State to temporarily (for up to six months) amend corporate insolvency primary and secondary legislation and related measures to deal with the consequences of the Covid-19 pandemic on companies. This power is virtually unrestricted as no effective check-and-balance system is put into place.
IV. Concluding Remarks
The Act provides much-needed temporary relief for distressed companies. However, given the speed with which the Act has been passed, the complexity of the legislation, and some questionable legislative choices, there are undoubtedly areas of ambiguity and potential challenge.
The extent to the Act will help companies navigate through the Covid-19 pandemic is far from clear. More importantly, the legislation, whilst very welcome for debtors, does not deal with the substantive problem of debt being built up and long-term balance sheet issues.
In fact, the Act provides no solution for debtors once the restrictions expire. At that point (end of September 2020), the debtors may have significant arrears of debt. These issues are particularly acute in those sectors of the economy that have been worst affected by the Covid-19 pandemic. As a result, these time-restricted measures may have the unintended effect of postponing the unavoidable, reducing returns to creditors and resulting in a spike of liquidation-oriented procedures in the last quarter of this year.
[4] Re A Company (Injunction to Restrain Presentation of Petition) [2020] EWHC 1406 (Ch), [2020] 6 WLUK 13 – restraining the presentation of a winding-up petition against a company which had been unable to pay its rent as a result of the Covid-19 pandemic by taking into account the likelihood of the change in the law represented by the relevant provisions of the Corporate Insolvency and Governance Bill 2020.
[5] The paper makes reference to the Bill, but the wording of the relevant provisions has not changed in the Act.
[11] Chapter 2, Companies Act 2006. These include the duties to act within their powers, to exercise independent judgement, to avoid conflicts of interest and to exercise reasonable care, skill and diligence.
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