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Corporate Insolvency and Governance Act 2020—resources for construction contracts—checklist

Corporate Insolvency and Governance Act 2020—resources for construction contracts—checklist This Checklist of resources sets out some of the considerations when drafting, reviewing and negotiating construction contracts in the light of the Corporate Insolvency and Governance Act 2020 (CIGA 2020). Corporate Insolvency and Governance Act 2020—the impact for construction lawyers The Corporate Insolvency and Governance Bill received Royal Assent on 25 June 2020 resulting in CIGA 2020. Among other reforms to insolvency law, CIGA 2020 introduced new provisions into the Insolvency Act 1986 (IA 1986) to ensure the continuity of essential supplies and restrict contractual termination provisions on insolvency (so-called ‘ipso facto’ clauses). The effect that will be of most relevance to construction practitioners when drafting and negotiating contracts is that a contractual right to terminate for an insolvency event, or to do ‘any other thing’ as a result of a customer’s insolvency in contracts for the supply of goods and services, will no longer be effective. In the construction context, the customer will be the party ‘up the line’, ie the employer under a...

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Establishing centre of main interests (COMI) or an establishment under the UNCITRAL Model Law

UNCITRAL Model law on insolvency guidance on COMIUNCITRAL has produced a judicial perspective for judges, reviewing various cases across the globe which have considered the UNCITRAL Model Law on Insolvency and offering general guidance on the issues a judge may need to consider (the UNCITRAL Judicial Perspective, paras 1–4). It doesn't purport to instruct judges how to deal with applications under the UNCITRAL Model Law on Insolvency and it recognises that no single approach is possible or desirable—flexibility is important where the economic dynamics of a situation can change suddenly.The UNCITRAL Judicial Perspective (paras 97–98) confirms that a deliberate decision was taken not to define COMI within the UNCITRAL Model Law on Insolvency itself and confirms that the concept of COMI was taken from the European Convention on Insolvency Proceedings (the Convention) (the forerunner to the EC Regulation on Insolvency, Regulation (EC) 1346/2000 (EC Regulation on Insolvency)) (itself the forerunner to the EU Recast Regulation on Insolvency) for reasons of consistency.The UNCITRAL Judicial Perspective (para 98) notes that although the...

The Pension Protection Fund—eligibility and entry

The Pension Protection Fund—eligibility and entry Requirements for PPF entry The requirements for a scheme to enter the PPF are: • the scheme must be an eligible scheme—see: What schemes are eligible? below • either: ◦ a qualifying insolvency event must occur in relation to a scheme employer—see: What is a qualifying insolvency event? below, or ◦ the employer is unlikely to continue as a going concern and it meets the conditions in SI 2005/590, reg 7—see: Alternative route to PPF entry, below • the insolvency practitioner in relation to the employer must confirm that a scheme rescue is not possible—see: Duty of insolvency practitioner to issue notices confirming status of scheme (section 122 notices), and • the assets of the scheme must be less than the 'protected liabilities' (broadly, the benefits that would be payable to members by the PPF)—see: Protected liabilities, below The statutory provisions regarding the eligibility of schemes for entry into the PPF are contained in: • sections 120–168 of the Pensions Act...

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Special administration—witness statement in support of application for special administration

Special administration—witness statement in support of application for special administration Applicant [NAME OF WITNESS] First Witness Statement Date: [] Exhibit [XX1] Court Reference No: [INSERT COURT REF. NUMBER] [ IN THE HIGH COURT OF JUSTICE] BUSINESS AND PROPERTY COURTS [OF ENGLAND AND WALES] [IN [INSERT LOCATION]] [COMPANY & INSOLVENCY LIST (ChD)] OR [IN THE COUNTY COURT AT [INSERT LOCATION]] [BUSINESS AND PROPERTY COURTS LIST] OR [IN THE HIGH COURT OF JUSTICE] [CHANCERY DIVISION] OR IN THE MATTER OF [INVESTMENT BANK NAME] AND IN THE MATTER OF THE INVESTMENT BANK SPECIAL ADMINISTRATION REGULATIONS 2011 AND IN THE MATTER OF THE INSOLVENCY ACT 1986 _________________________________________ WITNESS STATEMENT OF [WITNESS NAME] ___________________________________________ I, [witness name], director [and chairperson] of [investment bank name] of [investment bank address] WILL SAY AS FOLLOWS: 1 I am [a director and] [the chairperson] of [investment bank address] with company number [company number] (the Company). The Company is a wholly-owned subsidiary of [insert details], a company incorporated in [location]. It is in...

Security review report

Security review report Prepared in relation to [name of borrower] (a limited company registered in England and Wales with company number [company number]) Prepared for [name of lender] By [name of law firm] Date: [date] 1 Scope We have prepared this report on the validity and enforceability of the security held by [name of lender] (the lender) in respect of the obligations of [name of Borrower] (the borrower). We have considered the enforcement options available to you should you wish to take enforcement action. This report is based on the documentation provided by you and the searches set out at Appendix 3. [We have not undertaken a detailed review of the terms of any relevant loan facilities for the purposes of this report. Should you require a review of the loan facilities to assess potential defaults and breaches please contact us]. If there is a delay between the date of this report and the time at which enforcement action is taken, we advise that we should be...