Legislation
What main legislation is applicable to insolvencies and reorganisations?

Excluded entities and excluded assets
What entities are excluded from customary insolvency or reorganisation proceedings and what legislation applies to them? What assets are excluded or exempt from claims of creditors?

Public enterprises
What procedures are followed in the insolvency of a government-owned enterprise? What remedies do creditors of insolvent public enterprises have?

Protection for large financial institutions
Has your country enacted legislation to deal with the financial difficulties of institutions that are considered ‘too big to fail’?

Courts and appeals
What courts are involved? What are the rights of appeal from court orders? Does an appellant have an automatic right of appeal or must it obtain permission? Is there a requirement to post security to proceed with an appeal?

Voluntary liquidations
What are the requirements for a debtor commencing a voluntary liquidation case and what are the effects?

Voluntary reorganisations
What are the requirements for a debtor commencing a voluntary reorganisation and what are the effects?

Successful reorganisations
How are creditors classified for purposes of a reorganisation plan and how is the plan approved? Can a reorganisation plan release non-debtor parties from liability, and, if so, in what circumstances?

Involuntary liquidations
What are the requirements for creditors placing a debtor into involuntary liquidation and what are the effects? Once the proceeding is opened, are there material differences to proceedings opened voluntarily?

Involuntary reorganisations
What are the requirements for creditors commencing an involuntary reorganisation and what are the effects? Once the proceeding is opened, are there any material differences to proceedings opened voluntarily?

Expedited reorganisations
Do procedures exist for expedited reorganisations (eg, ‘prepackaged’ reorganisations)?

Unsuccessful reorganisations
How is a proposed reorganisation defeated and what is the effect of a reorganisation plan not being approved? What if the debtor fails to perform a plan?

Corporate procedures
Are there corporate procedures for the dissolution of a corporation? How do such processes contrast with bankruptcy proceedings?

Conclusion of case
How are liquidation and reorganisation cases formally concluded?

Conditions for insolvency
What is the test to determine if a debtor is insolvent?

Mandatory filing
Must companies commence insolvency proceedings in particular circumstances?

Directors’ liability – failure to commence proceedings and trading while insolvent
If proceedings are not commenced, what liability can result for directors and officers? What are the consequences for directors and officers if a company carries on business while insolvent?

Directors’ liability – other sources of liability
Apart from failure to file for proceedings, are corporate officers and directors personally liable for their corporation’s obligations? Are they liable for corporate pre-insolvency or pre-reorganisation actions? Can they be subject to sanctions for other reasons?

Directors’ liability – defences
What defences are available to directors and officers in the context of an insolvency or reorganisation?

Shift in directors’ duties
Do the duties that directors owe to the corporation shift to the creditors when an insolvency or reorganisation proceeding is likely? When?

Directors’ powers after proceedings commence
What powers can directors and officers exercise after liquidation or reorganisation proceedings are commenced by, or against, their corporation?

Stays of proceedings and moratoria
What prohibitions against the continuation of legal proceedings or the enforcement of claims by creditors apply in liquidations and reorganisations? In what circumstances may creditors obtain relief from such prohibitions?

Doing business
When can the debtor carry on business during a liquidation or reorganisation? Is any special treatment given to creditors who supply goods or services after the filing? What are the roles of the creditors and the court in supervising the debtor’s business activities?

Post-filing credit
May a debtor in a liquidation or reorganisation obtain secured or unsecured loans or credit? What priority is or can be given to such loans or credit?

Sale of assets
In reorganisations and liquidations, what provisions apply to the sale of specific assets out of the ordinary course of business and to the sale of the entire business of the debtor? Does the purchaser acquire the assets ‘free and clear’ of claims or do some liabilities pass with the assets?

Negotiating sale of assets
Does your system allow for ‘stalking horse’ bids in sale procedures and does your system permit credit bidding in sales?

Rejection and disclaimer of contracts
Can a debtor undergoing a liquidation or reorganisation reject or disclaim an unfavourable contract? Are there contracts that may not be rejected? What procedure is followed to reject a contract and what is the effect of rejection on the other party? What happens if a debtor breaches the contract after the insolvency case is opened?

Intellectual property assets
May an IP licensor or owner terminate the debtor’s right to use the IP when a liquidation or reorganisation is opened? To what extent may IP rights granted under an agreement with the debtor continue to be used?

Personal data
Where personal information or customer data collected by a company in liquidation or reorganisation is valuable, are there any restrictions in your country on the use of that information or its transfer to a purchaser?

Arbitration processes
How frequently is arbitration used in liquidation or reorganisation proceedings? Are there certain types of disputes that may not be arbitrated? Can disputes that arise after the liquidation or reorganisation case is opened be arbitrated with the consent of the parties?

Creditors’ enforcement
Are there processes by which some or all of the assets of a business may be seized outside of court proceedings? How are these processes carried out?

Unsecured credit
What remedies are available to unsecured creditors? Are the processes difficult or time-consuming? Are pre-judgment attachments available?

Creditor participation
During the liquidation or reorganisation, what notices are given to creditors? What meetings are held and how are they called? What information regarding the administration of the estate, its assets and the claims against it is available to creditors or creditors’ committees? What are the liquidator’s reporting obligations?

Creditor representation
What committees can be formed (or representative counsel appointed) and what powers or responsibilities do they have? How are they selected and appointed? May they retain advisers and how are their expenses funded?

Enforcement of estate’s rights
If the liquidator has no assets to pursue a claim, may the creditors pursue the estate’s remedies? If so, to whom do the fruits of the remedies belong? Can they be assigned to a third party?

Claims
How is a creditor’s claim submitted and what are the time limits? How are claims disallowed and how does a creditor appeal? Can claims for contingent or unliquidated amounts be recognised? Are there provisions on the transfer of claims and must transfers be disclosed? How are the amounts of such claims determined?

Set-off and netting
To what extent may creditors exercise rights of set-off or netting in a liquidation or in a reorganisation? Can creditors be deprived of the right of set-off either temporarily or permanently?

Modifying creditors’ rights
May the court change the rank (priority) of a creditor’s claim? If so, what are the grounds for doing so and how frequently does this occur?

Priority claims
Apart from employee-related claims, what are the major privileged and priority claims in liquidations and reorganisations? Which have priority over secured creditors?

Employment-related liabilities
What employee claims arise where employees’ contracts are terminated during a restructuring or liquidation? What are the procedures for termination? (Are employee claims as a whole increased where large numbers of employees’ contracts are terminated or where the business ceases operations?)

Pension claims
What remedies exist for pension-related claims against employers in insolvency or reorganisation proceedings and what priorities attach to such claims?

Environmental problems and liabilities
Where there are environmental problems, who is responsible for controlling the environmental problem and for remediating the damage caused? Are any of these liabilities imposed on the insolvency administrator personally, secured or unsecured creditors, the debtor’s officers and directors, or on third parties?

Liabilities that survive insolvency or reorganisation proceedings
Do any liabilities of a debtor survive an insolvency or a reorganisation?

Distributions
How and when are distributions made to creditors in liquidations and reorganisations?

Secured lending and credit (immovables)
What principal types of security are taken on immovable (real) property?

Secured lending and credit (movables)
What principal types of security are taken on movable (personal) property?

Transactions that may be annulled
What transactions can be annulled or set aside in liquidations and reorganisations and what are the grounds? Who can attack such transactions?

Equitable subordination
Are there any restrictions on claims by related parties or non-arm’s length creditors (including shareholders) against corporations in insolvency or reorganisation proceedings?

Groups of companies
In which circumstances can a parent or affiliated corporation be responsible for the liabilities of subsidiaries or affiliates?

Combining parent and subsidiary proceedings
In proceedings involving a corporate group, are the proceedings by the parent and its subsidiaries combined for administrative purposes? May the assets and liabilities of the companies be pooled for distribution purposes?

Recognition of foreign judgments
Are foreign judgments or orders recognised and in what circumstances? Is your country a signatory to a treaty on international insolvency or on the recognition of foreign judgments?

UNCITRAL Model Law
Has the UNCITRAL Model Law on Cross-Border Insolvency been adopted or is it under consideration in your country?

Foreign creditors
How are foreign creditors dealt with in liquidations and reorganisations?

Cross-border transfers of assets under administration
May assets be transferred from an administration in your country to an administration of the same company or another group company in another country?

COMI
What test is used in your jurisdiction to determine the COMI (centre of main interests) of a debtor company or group of companies? Is there a test for, or any experience with, determining the COMI of a corporate group of companies in your jurisdiction?

Cross-border cooperation
Does your country’s system provide for recognition of foreign insolvency proceedings and for cooperation between domestic and foreign courts and domestic and foreign insolvency administrators in cross-border insolvencies and restructurings? Have courts in your country refused to recognise foreign proceedings or to cooperate with foreign courts and, if so, on what grounds?

Winding-up of foreign companies
What is the extent of your courts’ powers to order the winding-up of foreign companies doing business in your jurisdiction?

Type

Insight

Locations

Bermuda

Share
Twitter LinkedIn Email Save as PDF
More Publications
3 Apr 2020 |

Estate planning during Covid-19

With people working from home and being surrounded by their spouse, children, and in some cases pare...

26 Mar 2020 |

The response to Covid-19: employment issues

The first seven cases of Covid-19 in Bermuda have been confirmed and the situation continues to deve...

16 Mar 2020 |

Filing deadline looms for Bermuda Private Trust Companies (PTC)

Bermuda’s regulatory regime for trust business has recently been enhanced. A framework for the sup...

13 Mar 2020 |

Appleby contributes five chapters to Global Legal Insights – Fund Finance 2020

Appleby provided five chapters to the Global Legal Insights - Fund Finance 2020 Guide. The publicati...

26 Feb 2020 |

Coronavirus, travel and employee health: What are the issues employers need to be aware of?

The spread of the Coronavirus continues following the initial outbreak in Hubei province, China at t...

25 Feb 2020 |

Technology & Innovation update Q1 2020

In each quarterly issue of the Appleby Asia Alert, we bring you all the latest legislative and regul...

25 Feb 2020 |

Economic Substance update Q1 2020

On 18 February 2020, the Economic and Financial Affairs Council (ECOFIN) announced that Bermuda and ...

20 Feb 2020 |

New ILS funds will be impressive in size

As insurance and reinsurance linked investing remains popular among investors and an attractive sour...

20 Feb 2020 |

Activist shareholders: removal of directors

Shareholder activism is a growing trend among listed companies. Sometimes, the actions of directors ...

3 Feb 2020 |

Getting ready for PIPA

It is possible that the Personal Information Protection Act 2016 could finally become fully operativ...