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In our fourth episode of R&I over Wi-Fi, Senior Associate Lachlan Greig sits down with Partner Paul Madden to discuss provisional liquidation. The focus of this episode is on the appointment of restructuring provisional liquidators when the company is unable to pay its debts.
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Our third episode is hosted by Jayson Wood and Jessica Williams, Partners in our Litigation and Insolvency practice group.
Key takeaways:
The appointment of restructuring provisional liquidators in the Cayman Islands provides protection for a Cayman Islands company while a restructuring is negotiated in the US (and triggers a Cayman statutory moratorium).The gateway for the appointment of restructuring provisional liquidators is: (i) that the company is unable to pay its debts; and (ii) that it intends to present a compromise or arrangement to its creditors. The Cayman Islands has not adopted the UNCITRAL Model Law. US Bankruptcy practitioners will therefore consider if steps should be taken in Cayman, through a parallel restructuring, to protect the effectiveness of the Chapter 11 plan (and taking into account the Gibbs rule).The decision will largely come down to risk appetite (rather than costs), with parallel restructurings in the country of the law of the debt and the place of incorporation providing maximum effectiveness and recognition to the restructuring.
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In our second episode, partners Andy Thorp, Stuart Cullen and Ellie Crespi discuss the US$1.67 billion global debt restructuring of Brazilian oil and gas services group Constellation (formerly Queiroz Galvão Oil & Gas).
The transaction saw a creative move by the BVI courts, who accepted the appointment by the company of a light touch provisional liquidator over the BVI subsidiaries of Constellation, providing a moratorium against its unsecured creditors and breathing space for the Brazilian restructuring to operate.
Here we take a closer look at the legal and practical implications of the restructuring, and whether legislative reform is on the cards in the BVI.
Key Takeaways:
The Operation Car Wash (lava jato) investigation, as it did with many Brazilian businesses in the same industry, had a massive impact on the operations of Oil and Gas giant Queiroz Galvão Oil & Gas group (now Constellation). The restructuring involved an unprecedented move by the BVI courts, who accepted the appointment by the company of light touch provisional liquidators, with only minimal supervisory powers but providing the umbrella protection of a moratorium. The ejection of one of the key BVI subsidiaries from the Brazilian restructuring required a BVI solution to compromise its obligations to allow the reissuance of fresh notes and security. Following the successful Brazilian RJ, the BVI scheme was approved in February of this year and obtained Chapter 15 recognition in the SDNY in March to complete the US$1.5+ billion restructuring.
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Introducing R&I over Wi-Fi, Harneys’ newest podcast series. Taking a deep dive into the various strategies and tactics you can take when faced with a restructuring, while keeping you up to date on emerging and critical issues surrounding restructuring and insolvency.
Key Takeaways:
A cross-border restructuring of an offshore company needs to ensure that the compromise which is effective in one jurisdiction also has practical effect in all other jurisdictions in which the company holds assets. The steps required to give practical effect to any particular restructuring are necessarily fact sensitive and will depend on the precise nature of the compromises implemented by the restructuring process. The starting point in any debt restructuring is the “Gibbs Rule” which provides that where a debt is governed by the law of a particular jurisdiction, it cannot be compromised by a foreign insolvency proceeding unless the creditor submitted to that foreign proceeding. The commercial imperative is to ensure that a disgruntled creditor cannot undermine the negotiation or implementation of a restructuring in the jurisdiction where the scheme company is incorporated. Robust protections are available in the Cayman Islands, the British Virgin Islands, and Bermuda to ensure the smooth running and the cross-border effectiveness of onshore debt restructurings.
