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Devi Shah is a partner and co-head of the Restructuring practice of the London office. With 25+years' experience, she advises on all aspects of restructuring and insolvency and has a particular interest in international and cross-border insolvency and restructuring matters, as well as pensions- and insurance- related restructurings.  She has worked on high-profile transactions across a range of sectors including retail, energy, mining, real estate, insurance, financial services and automotive.

Devi's broad practice spans pre-investment structuring advice; restructuring and enforcement options analysis; transactional, out of court restructurings including schemes of arrangement and consensual deals utilising inter-creditor mechanics; as well as advising on formal insolvency appointment and contentious matters, such as investigations, clawback claims and the use of statutory information-gathering powers. She has led on matters in this area across all levels of the courts in the UK, including in the Supreme Court.

The Corporate Insolvency and Governance Act 2020 (“CIGA“) ushered in a flexible restructuring compromise or arrangement for companies in financial difficulty (the “Restructuring Plan“). The legislation governing the Restructuring Plan sits alongside that for schemes of arrangement and is included in a new Part 26A to the Companies Act 2006.

The Restructuring Plan does not apply to companies that are solvent with no risk of insolvency; rather it only applies to companies where two conditions have been satisfied:

  • condition A: the company has encountered, or is likely to encounter, financial difficulties that are affecting, or will or may affect, its ability to carry on business as a going concern; and
  • condition B: a compromise or arrangement is proposed between the company and (a) its creditors, or any class of them; or (b) its members, or any class of them; and the purpose of the compromise or arrangement is to eliminate, reduce or prevent, or mitigate the effect of, any of those financial difficulties.

A Restructuring Plan may be proposed by the company, or its creditors, shareholders, liquidators or administrators. When the insolvency reforms were originally proposed, it was intended that the company be given exclusivity for a certain period to propose the Restructuring Plan, mirroring the position in the US; however this is not included in CIGA.


Continue Reading Restructuring Plan for Companies in Financial Difficulty Under the Corporate Insolvency and Governance Act 2020

On 25 June 2020, the Corporate Insolvency and Governance Bill (the “Bill”) received Royal Assent and on 26 June 2020 CIGA came into force. The restructuring team in Mayer Brown’s London office have previously commented on the different elements of the Bill in a series of blog posts and podcasts. CIGA was swiftly followed by the introduction of The Pension Protection Fund (Moratorium and Arrangements and Reconstruction for Companies in Financial Difficulty) Regulations 2020 (the “Regulations“), which came into force on 7 July and were subsequently amended yesterday on 23 July. Now that CIGA is in force, we take a closer look at the legislation from a pensions perspective.

Continue Reading The UK Corporate Insolvency and Governance Act 2020 (“CIGA”) from a Pensions Perspective

The Corporate Insolvency and Governance Bill 2020 (the “Bill“) introduces a flexible restructuring compromise or arrangement for companies in financial difficulty (the “Restructuring Plan“). It is proposed that the legislation governing the Restructuring Plan will sit alongside the schemes of arrangement and be included in a new Part 26A to the Companies Act 2006.

The Restructuring Plan will not apply to companies that are solvent with no risk of insolvency; rather it will only apply where two conditions are satisfied:

  • condition A: the company has encountered, or is likely to encounter, financial difficulties that are affecting, or will or may affect, its ability to carry on business as a going concern; and
  • condition B: a compromise or arrangement is proposed between the company and (a) its creditors, or any class of them; or (b) its members, or any class of them; and the purpose of the compromise or arrangement is to eliminate, reduce or prevent, or mitigate the effect of, any of those financial difficulties.

The Restructuring Plan may be proposed by the company, or its creditors, shareholders, liquidators or administrators. When the insolvency reforms were originally proposed, it was intended that the company be given exclusivity for a certain period to propose the Restructuring Plan. This exclusivity period would mirror the position in the US; however this is not included in the Bill, as drafted.


Continue Reading Restructuring Plan for Companies in Financial Difficulty – Changes Introduced by the UK Corporate Insolvency and Governance Bill

On 20 May 2020, the UK government announced the Corporate Insolvency and Governance Bill (the “Bill”), introducing a mixture of permanent and temporary measures, the latter being in response to the financial challenges companies are facing as a result of the Covid-19 pandemic and lockdown. In the absence of extensive consultation with insolvency practitioners and industry experts, it remains to be seen how effective the measures will be in practice.

As anticipated, a new standalone moratorium, overseen by a “monitor”, has been introduced. The provisions largely mirror those put forward during the limited consultation in 2018 – the purpose being to provide a company with the breathing space to explore a rescue or restructuring of the business, which includes the newly introduced restructuring plan. It is not intended that the company has the form of rescue/restructuring in mind at the time the moratorium is applied for and the moratorium is not a gateway to any particular insolvency process. Notably, the moratorium enables the directors to remain in day to day control of the business and enables them to lead discussions regarding rescue and restructuring, albeit we expect that the monitor will provide invaluable knowledge and guidance in crafting the best form of rescue/restructuring. Current timelines indicate that companies may be able to seek this new moratorium as early as the end of June 2020.


Continue Reading Standalone Moratorium for Companies – Changes Introduced by the UK Corporate Insolvency & Governance Bill

On May 20, 2020, the UK Government published its much anticipated draft legislation (the Corporate Governance and Insolvency Bill) which aims to provide greater opportunities for company survival and better returns for creditors during and after the COVID-19 emergency. The Government intends to ask Parliament to expedite progress of the Bill.

If enacted in its current form, the Bill will introduce greater flexibility into the UK’s insolvency regime, allowing companies breathing space to explore options for rescue while supplies are protected, so that they have the maximum chance of survival. It will also temporarily suspend parts of insolvency law to support directors to continue trading through the COVID-19 pandemic without the threat of personal liability, and to protect companies from aggressive creditor action.


Continue Reading UK Government Publishes UK Restructuring and Insolvency Law Reforms

A court has approached the interplay between the Insolvency Act 1986 and the UK Government’s furlough scheme so as to encourage and support the rescue culture and facilitate access to the scheme by administrators. It ruled that:

  1. employees consenting only to be paid the capped amount provided under the scheme could receive no more than

We previously provided an overview of the UK Government support schemes in respect of COVID-19. The package of measures is evolving rapidly.

Here we provide an update on:

  • Changes to the Coronavirus Business Interruption Loan Scheme (“CBILS”)
  • A new Coronavirus Large Business Interruption Loan Scheme (“CLBILS”).

Changes to the Coronavirus Business Interruption Loan Scheme (“CBILS”)

Background

CBILS “went live” on 23 March 2020. It provides facilities of up to £5 million for smaller businesses across the UK who are experiencing lost or deferred revenues, leading to disruptions to their cash flow. It supports a wide range of business finance products, including term loans, overdrafts, invoice finance and asset finance. The scheme provides a lender with a Government-backed guarantee.

Originally, at the discretion of the lender, the scheme was able be used for unsecured lending for facilities of £250,000 and under. For facilities above £250,000, the lender was required to establish a lack or absence of security prior to businesses using CBILS. If the lender could offer finance on normal commercial terms without the need to make use of the scheme, they would do so. Further, to be eligible for CBILS, the borrower was required to have an annual turnover of no more than £45m.


Continue Reading COVID-19 – UK Government Support Schemes (Update)

On March 28, 2020[1], the UK Government announced that it will introduce new legislation extending the UK’s existing restructuring and insolvency laws to include:

  • a new company moratorium to give companies a breathing space from creditors while they seek to rescue or restructure;
  • protection of supplies to enable companies to trade during the moratorium; and
  • a new restructuring plan, binding on creditors.

The Government previously consulted on these changes in 2018 (the Consultation) but did not introduce them[2]. (In the Consultation it was proposed that: the moratorium would be standalone procedure, preventing the enforcement of security, legal proceedings and creditor action; supplies would be protected by prohibiting reliance on contractual termination clauses based solely on insolvency events; and the new restructuring plan would be based upon the existing scheme of arrangement but with cross-class cram-down available as a means of binding dissenting creditors.)


Continue Reading UK Government Announces Amendments to UK Insolvency Laws to Give Companies and Directors a Breathing Space While They Explore Rescue and Restructuring Options