I INSOLVENCY LAW, POLICY AND PROCEDURE
i Statutory framework and substantive law
Insolvency and restructuring proceedings in Ireland are primarily governed by the Companies Act 2014 (as amended),2 the Bankruptcy Act 1988 (as amended) and the Personal Insolvency Act 2012 (as amended). These are supplemented by principles of common law.
The Irish legal framework is embedded in the EU framework3 under the Recast Insolvency Regulation, augmented by the provisions of the Rome Regulation and the Recast Brussels Regulation. The overall Irish framework is both creditor-friendly and flexible, featuring processes that facilitate rescue and restructuring of corporate groups with complex structures.
In terms of substantive provisions applicable to insolvency proceedings, a liquidator and any creditor may seek to set aside eligible transactions. Such powers arise when (1) the transaction occurred within specified periods before the company entered into liquidation; and (2) the company was insolvent at the time it entered into the transaction.
Three types of transactions are particularly vulnerable in this regard:
- unfair preference: a transaction in favour of a creditor taking place within six months of the commencement of a winding up (or within two years if in favour of a connected person) and made with the dominant intention of putting the other party in a better position than they would be in if the company enters liquidation;
- avoidance of a floating charge: if a floating charge has been created within 12 months of the commencement of a winding up, it will be invalid unless it can be shown that, immediately after the creation of the charge, the company was solvent. However, it will not be invalid to the extent of money or goods or services actually provided as consideration for the charge; and
- fraudulent transfers: a liquidator or creditor of a company can apply to the High Court for the return of assets or for compensation where they can establish that the transfer of the assets had the effect of the perpetration of a fraud on the company, its creditors or its members. However, transactions that are unfair preferences are excluded.
The underlying principle concerning distribution in a liquidation is that the property of a company should be applied pari passu in satisfaction of its liabilities. This allows for all creditors, particularly those within the same class, to be treated equally. If the realised assets of a company are insufficient to pay any class of creditors in full, they are paid in equal proportion to their debts.
A combination of legislation, contract law and common law establishes a 'waterfall' of claims in insolvency proceedings. The following order of priority is therefore a general guide only:
- super-preferential claims (e.g., certain employees' social insurance contributions);
- remuneration, costs and expenses of an examiner that have been sanctioned by the court;
- fixed charge holders (a fixed charge holder is entitled to realise its security outside a winding up of the company);
- expenses certified by an examiner;
- liquidation costs and expenses;
- preferential debts (e.g., certain rates and taxes, wages and salaries);
- holders of any charge created as a floating charge;
- unsecured debts; and
- deferred debts of members.
When proceeds are insufficient to meet the claims of one category in full, payments for that category are pro-rated.
The Irish restructuring regime lends itself towards rescue where appropriate. The threshold for each restructuring process is designed to ensure that only companies with a genuine prospect of survival can engage in a restructuring process.
'Examinership' is a court-supervised process whereby a court-enforced moratorium is in place on creditor action to facilitate the restructuring and survival of a company.4 However, although the Irish framework provides for and encourages restructuring regimes, and the vast majority of examinerships have a successful outcome, the level of examinerships remains relatively low. This is largely because of the fact that it can be a costly process and, therefore, is not suited to every company.
Like the United Kingdom, it is also possible for companies in Ireland to avail themselves of a statutory scheme of arrangement, which can be used to implement a variety of arrangements between a company and its creditors or its members. While schemes of arrangement can be used to implement even the most complex of debt restructurings, they are not used as often as the examinership process in Ireland, not least because in an examinership, there is a lower voting threshold.
iii Insolvency procedures
An insolvent company can be wound up by the High Court (compulsory liquidation) or by way of a shareholders' resolution followed by a creditors' meeting (creditors' voluntary liquidation). The main criterion required to liquidate an insolvent company is that the company is unable to pay its debts. This usually entails an assessment of whether (1) the company is unable to pay its debts as they fall due (the cash flow test); or (2) the value of the company's assets is less than its liabilities, taking into account its contingent and prospective liabilities (the balance sheet test).
The time frame for the completion of a winding up is dependent upon the size of the company and its trading patterns. A relatively straightforward liquidation can complete within a year; however, it is common for larger and more complex liquidation procedures to take significantly longer.
Examinership is the main rescue process for companies in Ireland. Although there are a number of differences, international corporates will recognise examinership as being similar in many respects to the Chapter 11 procedure in the United States and, to a lesser extent, administration in the United Kingdom.
In an examinership, the maximum period in which a company may be under the protection of the court is 100 days.5 An examiner (a court-appointed insolvency practitioner) has to have formulated a scheme, convened creditors' meetings and reported back to the court by day 100 and the approval of the scheme is typically heard by the High Court shortly thereafter. The scheme must be approved by more than 50 per cent (in value and number) of any one impaired class in order for it to be put before the court for approval.
Statutory schemes of arrangement
Although the statutory scheme of arrangement6 is not necessarily an insolvency process, its flexibility allows it to be used to restructure debt. However, the scheme is more commonly used in Ireland to give effect to a reorganisation of shareholdings of large corporates and has tended to be the tool of choice for effecting the large-scale corporate inversion transactions that have been in vogue in recent times with US and Irish pharmaceutical companies.
In a statutory scheme of arrangement, once a scheme proposal document has been finalised and circulated, it would not be unrealistic for the court process to be completed within eight to 10 weeks. The scheme must be approved by more than 75 per cent of value and a majority in number of each class of creditors or members.
While a receivership is a method of enforcing security, it is in practice treated as a form of insolvency procedure. It is possible to restructure companies by way of a pre-pack receivership, in which case the sale of a distressed company's business can be negotiated before it enters into receivership and executed shortly after the receiver is appointed. The aim is to minimise disruption and cost, and an advantage is that out-of-the-money junior creditors can be left behind in the insolvent company.
Ancillary insolvency proceedings
The Recast Insolvency Regulation applies to all collective insolvency proceedings relating to a company with its centre of main interests (COMI) in an EU Member State. The regime under the Recast Insolvency Regulation allows for the opening of secondary proceedings in another Member State in which the company has an establishment where main proceedings have been opened and are pending in another Member State.
It is possible for the insolvency office holder in the main proceedings to give a unilateral undertaking to creditors in the secondary proceedings that local distribution and priority rules will be respected as though secondary proceedings were opened there, which generally negates the requirement for secondary proceedings.
It is possible for liquidators of companies in non-EU countries to apply to the court in Ireland under common law for an order in aid of the foreign proceedings. The court has discretion to grant such an order in appropriate cases.
iv Starting proceedings
The question of who may commence such proceedings depends on which procedure is used.
In a compulsory liquidation, the court has jurisdiction to appoint a liquidator if it is satisfied that the company is unable to pay its debts or that it is just and equitable to do so.7 Those entitled to petition the court to liquidate a company include the company itself, a creditor of the company, a contributory of the company8 and the country's Director of Corporate Enforcement. A compulsory liquidation is deemed to commence at the time of filing the petition.
Notice of the petition must be advertised, which allows parties (including the company itself and its creditors) to object to the appointment of a liquidator at the hearing of the petition.
Creditors' voluntary liquidation
A creditors' voluntary liquidation is usually initiated by the directors of a company. A shareholders' meeting and a creditors' meeting are called. The shareholders resolve that the company is insolvent and a liquidator is appointed. A statement of affairs is compiled and presented by the directors at the creditors' meeting, including a list of creditors and amounts owed.
When a company is, or is unlikely to be, unable to pay its debts, the shareholders,9 directors or creditors10 may petition the court to appoint an examiner. It is generally the company itself that petitions the court for the appointment of an examiner. Notice of the petition must be advertised, and it is possible for interested parties to object at the hearing of the petition to the appointment of an examiner. If an examiner has formulated proposals for a scheme of arrangement for consideration by the creditors, it is possible to challenge the proposals on the basis that one class of impaired creditors has not voted in favour of the scheme (which could be based on arguments in relation to the composition of classes). Challenges are also possible on the basis that the proposals are unfairly prejudicial to a particular creditor or are not fair and equitable in relation to any class of creditors.
Statutory scheme of arrangement
It is generally the directors of a company who apply to the court to summons a meeting between the members and creditors to formulate a scheme of arrangement. However, the company itself, any creditor or member of the company or, in the case of a company being wound up, the liquidator, may also apply to the court to initiate the process.11
v Control of insolvency proceedings
Once an insolvent company is in liquidation, the directors' powers cease and the liquidator assumes the management of the company.
The Companies Act 2014 places a compulsory liquidation on the same footing as a creditors' voluntary winding up once the order for winding up is made, thereby reducing the supervisory role of the court in favour of greater creditor involvement and liquidator autonomy.
In an examinership, the company will continue to trade and the directors usually remain in control of a company during the protection period. This is subject to the court's discretion to direct, upon application, that the examiner assumes some or all of the director's functions only for the period of examinership. In practice, this is rarely done, and usually when there has been a suggestion of some sort of wrongdoing on the part of the directors. The examiner's scheme of arrangement requires court approval before it becomes binding.
Statutory scheme of arrangement
The directors and shareholders are usually instrumental in putting together the scheme and running the process. As with an examinership, the company can continue trading and the directors can stay in control of the company.
vi Special regimes
Modified insolvency regimes apply in certain sectors and special situations. Examples include the following.
The Insurance (No. 2) Act 1983 provides for the appointment of an administrator to non-life insurance insolvent companies at the request of the Central Bank in certain circumstances with a view to ensuring the survival of the company.
Ireland took a series of exceptional steps to contain the crisis in the banking sector that emerged in 2008. Its strategy included transferring non-performing eligible assets to a government-backed entity, the National Asset Management Agency, and to provide capital and liquidity to weakened and distressed banks and building societies.
The European Communities (Reorganisation and Winding up of Credit Institutions) Regulations 2011 (SI 48 of 2011) and the Central Bank and Credit Institutions (Resolution) Act 2011 apply to the winding up of credit institutions and banks and aim to provide an effective and expeditious regime for dealing with failing credit institutions.
The Irish Bank Resolution Corporation Act 2013 was enacted in February 2013 and provided for the immediate liquidation of Irish Bank Corporation Limited (formerly Anglo Irish Bank Corporation Limited) by way of 'special liquidation'. As the special liquidators were appointed by the Minister for Finance, they are obliged to comply with instructions given to them by the Minister and are under an obligation to act in the interests of the Irish taxpayer, putting them in a somewhat different position than other liquidators, who are answerable primarily to the creditors of the company.
Ireland is an internationally recognised centre of excellence in aviation finance and recently gave effect to the 'Alternative A' insolvency remedy of the Aircraft Protocol to the Cape Town Convention on International Interests in Mobile Equipment, the primary purpose of which is to provide a protective regime for aircraft financiers and creditors in insolvency proceedings similar to the US Chapter 11 procedure.
vii Cross-border issues
The Recast Insolvency Regulation applies to all collective insolvency proceedings and some restructuring proceedings relating to a company with its COMI in the European Union. The Recast Insolvency Regulation provides for automatic recognition in Ireland of proceedings to which the Regulation applies.
Ireland has not adopted the UNCITRAL Model Law on Cross-Border Insolvency Proceedings (the Model Law). In November 2018, the Irish Company Law Review Group reported to the Minister for Business, Enterprise and Innovation on the Model Law and recommended that be adopted in Ireland. The report has been under consideration by the minister's department. For a company that does not have its COMI in the European Union, the foreign insolvency officeholder can apply to the High Court pursuant to common law for recognition and an order in aid of the foreign proceedings. In the exercise of that jurisdiction, the Court has given consideration to the following factors:
- whether recognition is being sought for a legitimate purpose;
- that there is no prejudice to any creditor in Ireland in affording recognition;
- that there is no infringement of any local law in affording recognition;
- where the insolvency procedure in the other state is sufficiently similar to that in Ireland; and
- that to afford recognition would not infringe public policy in Ireland.
II INSOLVENCY METRICS
Ireland's gross domestic product grew by 1.2 per cent in in the first quarter of 2020, despite a decline in private consumption.12 The total number of corporate insolvencies recorded in Ireland in 2019 was 568, resulting in a 26 per cent decrease from the total of 767 recorded in 2018. When compared with 2012, during which 1,684 insolvencies were recorded, the 2019 figures represent a 66 per cent decrease in corporate insolvencies over the past seven years.
According to analysis carried out by Deloitte, the total number of corporate insolvencies recorded in the first quarter of 2020 was 159 which represented a decrease of 18 per cent from the same period in 2019. In this regard, court liquidation appointments, corporate receiverships and examinerships showed a decrease in activity when compared with the same period in 2019. According to Deloitte, there is likely to be an increase in receivership activity as the year progresses and various moratoriums offered by lending institutions are lifted. Economic activity is expected to have plunged in the second quarter of the year because of the covid-19 pandemic and its associated lockdown.13 Official unemployment remained low at about 5.3 per cent in the second quarter of 2020 while covid-19 adjusted unemployment (i.e., including persons who are receiving unemployment payments for losing their job because of the pandemic) surged to 28.2 per cent in April, before declining to 26.6 per cent in May and 22.5 per cent in June.14
Of the four main industry sectors, the services industry once again recorded the highest number of corporate insolvencies in the first quarter of 2020 with 54 appointments (34 per cent of total insolvencies). In light of the covid-19 pandemic and its impact on international travel, the global airline industry has suffered a significant decline in operations. This is highlighted in Ireland by the recent examinership of CityJet DAC and the restructuring of Nordic Aviation Capital (the world's largest regional aircraft lessor) (both detailed below). The pandemic has also had a significant impact on Ireland's retail sector as demonstrated by the liquidation of Debenhams Retail (Ireland) Limited and the examinership of Compu B Retail Limited (both detailed below)
There has been an increase in the number of personal insolvency applications in the first quarter of 2020 when compared with 2019. However, activity in the first quarter of 2020 has been impacted by the effects of the covid-19 pandemic with March seeing a significant decrease in the numbers of protective certificates and personal insolvency arrangements with that trend expected to carry over into the second quarter of 2020.15 According to statistics published by the Insolvency Service of Ireland, the downward trend in the number of bankruptcies evident in 2019 has continued into 2020.
III PLENARY INSOLVENCY PROCEEDINGS
i Weatherford International plc & the Companies Act 2014
On 23 September 2019, Michael McAteer of Grant Thornton was appointed as examiner to Weatherford International plc, an Irish registered company, on an interim basis. Mr McAteer's appointment as examiner was confirmed on 7 October 2019 by Mr Justice Quinn in the High Court. Weatherford International plc is one of the largest oil-field service companies in the world. The examinership of Weatherford International plc was one of the most significant global corporate restructuring transactions of 2019 and the largest corporate restructuring to date in Ireland, involving the restructuring of debt in excess of $7 billion.
The examinership was part of Weatherford International plc's 2019 global restructuring that commenced by way of a Chapter 11 restructuring process in the US and necessitated Weatherford International plc entering into examinership in Ireland and the formulation of an appropriate scheme of arrangement.
A carefully negotiated consensual restructuring of the debtors' balance sheets was implemented by way of a Chapter 11 restructuring process in the US of three companies in the Weatherford group. The success of the process was, however, contingent on obtaining analogous orders in Irish examinership proceedings for Weatherford International plc, the Irish registered parent of the Weatherford group, and a Bermuda registered subsidiary.
Mr Justice Quinn approved a scheme of arrangement for Weatherford International plc in the High Court in December 2019 that resulted in a significant deleveraging of Weatherford International plc's capital structure, reducing its balance-sheet liabilities from approximately US$8.35 billion to US$2.75 billion. This was the first occasion on which the Irish examinership process was used in parallel with the US Chapter 11 process and the case further strengthens Ireland's reputation as an international restructuring jurisdiction.
ii In re Ballantyne Re plc & the Companies Act 2014
The 2019 case of In re Ballantyne Re plc is the first instance of an Irish scheme being used in a number of years to restructure an insolvent company, Ballantyne Re plc. Ballantyne Re plc was a special purpose vehicle originally set up in Ireland in 2006 by Scottish Re US to service an indemnity reinsurance agreement. US$1.65 billion of senior notes and US$270 million of junior notes were issued under New York law to fund Ballantyne Re plc's obligations in this regard. US$900 million of these notes were guaranteed by Ambac Assurance UK Limited (Ambac). A smaller amount was guaranteed by Assured Guaranty (Assured) also. There was a loss in value of the funds which meant that Ballantyne Re plc could not make interest payments due on the notes. This resulted in payment obligations under the third party guarantees granted by Ambac and Assured. Ballantyne Re plc continued to be in a position to perform its obligations under the reinsurance agreement. It was apparent, however, that there would be a shortfall in the available assets to discharge the senior notes. The proposed restructuring pursuant to the scheme included the novation of the reinsurance agreement to a new reinsurer, Swiss Re, and the ultimate distribution of assets to senior noteholders worth 51.2 cents in the dollar.
The sanctioning of the scheme by the Irish High Court was opposed by one of the senior noteholders. In the commercial court division of the High Court, Mr Justice Barniville delivered a comprehensive judgment in which he rejected all the grounds of objection and ultimately sanctioned the scheme of arrangement. In doing so, he considered and approved a number of Irish and international authorities on schemes of arrangement and dealt with complex issues such as whether third party releases could be effected as part of a scheme and the ability of an Irish scheme to restructure New York law-governed debt.
iii Debenhams Retail (Ireland) Limited (In Liquidation) & the Companies Act 2014
Kieran Wallace and Andrew O'Leary of KPMG were appointed as joint liquidators to Debenhams Retail (Ireland) Limited (In liquidation) (Debenhams) on a provisional basis on 16 April 2020. They were subsequently confirmed as joint liquidators by order of the High Court dated 30 April 2020. Debenhams is a member of a group of companies known as the Debenhams Group whose principal activity, prior to the covid-19 pandemic, was the operation of department stores in the United Kingdom and Ireland. The group were retailers of fashion, beauty, giftware, homeware and electrical products. Debenhams previously traded from 11 stores in Ireland in addition to the provision of its online services to Irish customers. The stores were located in Dublin, Cork, Galway, Limerick, Newbridge, Tralee and Waterford. Prior to entering into liquidation, Debenhams employed approximately 957 people.
Given the sheer scale of Debenhams' operations, the joint liquidators have been required to consider a multitude of issues since their appointment in April including, among other things, effecting collective redundancies, retention of title claims (to include claims of concessionaires), surrendering or disclaiming leases pertaining to the 11 stores (which was further complicated by the fact that Debenhams plc, the direct landlord, had previously gone through an administration and is now dissolved), data protection issues in relation to customer data and litigation brought against Debenhams.
iv CityJet DAC & the Companies Act 2014
Kieran Wallace of KPMG was appointed as interim examiner to CityJet DAC (in examination under Part 10 of the Companies Act 2014 (as amended) (CityJet) following a presentation of a petition to the High Court of Ireland for court protection on 17 April 2020. Mr Wallace was confirmed as examiner of CityJet by order of the High Court dated 27 April 2020.
CityJet is principally involved in the provision of wet leasing aircraft to airlines. This involves leasing aircraft to airlines to provide them with capacity to undertake regional flights with smaller aircraft which negates the need for those airlines having to own the necessary smaller aircraft.
The decision was taken by CityJet to petition the High Court for court protection as a consequence of various issues associated with the covid–19 pandemic. The pandemic has exacerbated CityJet's financial difficulties and interrupted a proposed private restructuring in respect of the company.
The examinership is at an advanced stage. Proposals for a compromise or scheme of arrangement in respect of CityJet, as formulated by the examiner, were considered by the High Court in July 2020 and the High Court indicated its intention (subject to the satisfaction of certain conditions) to make an order sanctioning the said proposals. Should the proposals come into effect, they will provide for a significant write down of the CityJet's historic liabilities.
v Nordic Aviation Capital & the Companies Act 2014
The Nordic Aviation Group is the world's largest regional aircraft lessor and the world's fifth largest aircraft lessor and has been significantly affected by the covvid-19 pandemic. On 21 July 2020, Mr Justice Barniville approved a scheme of arrangement for Irish-based lessor company Nordic Aviation Capital. The aircraft lessor sought to enter into a scheme of arrangement with its creditors in light of the effects of the covid-19 pandemic on the aviation industry.
In approving the scheme of arrangement, which received the support of over 90 per cent of the different classes of Nordic Aviation group's creditors, Mr Justice Barniville was satisfied that he had the jurisdiction to make the order sought and that the scheme was 'fair and equitable'. The scheme includes a 12-month standstill and deferral of more than €5 billion of debt from Nordic Aviation Capital to its creditors. The proposed scheme re-affirmed, following the Ballantyne case (referenced above), the ability to affect third-party liabilities. It went one step further than the High Court in the Ballantyne case in that the company that proposed the scheme was the guarantor of the relevant liabilities and the third parties were the principal creditors.
vi Compu B Retail Limited & Others and the Companies Act 2014
In another example of the impact of the covid-19 pandemic on the retail sector, Compu B Retail Limited, a large retailer specialising in the sale of high-end technology brands across Ireland and the UK, petitioned the High Court in July 2020 to appoint an examiner to it and three related UK companies – Compu B Limited, Stormfront Technology Limited and Stormfront Retail Limited.
Compu B Retail Limited and the related companies operate through a network of 32 retail premises across Ireland and the UK. They have the largest approved Apple Premium Reseller market share in Ireland and the UK.
However, the covid-19 pandemic resulted in a drastic reduction in margins as well as a significant reduction in sales (and hence purchases) owing to the lockdown measures and restrictions introduced by the Irish and UK governments, which had a significant impact on business. The appointment of an examiner gives the companies important breathing space to restructure (70 days, which can be extended to 100 days) and allows the companies to consider the options to continue as going concerns into the future.
IV ANCILLARY INSOLVENCY PROCEEDINGS
The Recast Insolvency Regulation has not frequently been invoked in the Irish courts.
The High Court recently considered the scope of the Recast Insolvency Regulation in the case of Healy v. Irish Life Staff Benefits Scheme & Anor,16 in which the plaintiff had been adjudicated bankrupt in 2013 by the High Court of Manchester in the United Kingdom. The relevant court order stated that the proceedings are main proceedings for the purposes of the original Insolvency Regulation, which was applicable at that time. The defendant was an employee of the second named defendant and was party to a pension scheme (the Scheme).
The trustee in bankruptcy claimed an entitlement to the plaintiff's rights and benefits under the Scheme. The plaintiff was discharged from bankruptcy in 2014 and was unsuccessful in his application to the High Court of Justice in England to have his pension under the Scheme excluded from his estate in bankruptcy. The plaintiff then sought injunctive relief from the Irish High Court in the form of an order preventing the defendants from liaising with the trustee in bankruptcy and from making any payments to the trustee. The defendants contested the jurisdiction of the Irish High Court on the basis of the plaintiff's COMI.
In relation to whether a pension should form part of a plaintiff's estate in bankruptcy, the Court confirmed that is a matter for determination in the UK proceedings and that, for the Court to make the reference to the Court of Justice of the European Union, as requested by the plaintiff, would in effect be precisely the type of interference with the UK bankruptcy proceedings that the EU regulations are designed to prohibit.
In the recent Compu B Retail Limited examinership, the issue of a company's COMI arose owing to the three related companies being registered in the UK. However, detailed evidence was provided to the High Court to demonstrate that the business of the related companies was administered from Ireland and all policies and procedures were controlled by and communicated from the management team based in Dublin with the result that the related companies were successfully placed into examinership on 10 July 2020 along with the Irish retail company.
The covid-19 pandemic has had a significant effect on economic activity worldwide resulting in the shutdown of large parts of the economy. A string of indicators suggests that the euro area economy has operated at between 25 per cent to 30 per cent below its capacity during the period of the strictest confinement.17 According to analysis carried out by the EU Commission, real GDP for Ireland is projected to contract by 8.5 per cent in 2020, while the Irish economy is expected to increase by 6.25 per cent in 2021.
In response to the covid-19 pandemic and in a similar step to the UK government, the new Irish government introduced temporary changes to the Companies Act 2014 (and in particular in the area of insolvency and restructuring) via the 2020 Act aimed at mitigating the impact of the covid-19 pandemic. Some of the key features of the proposed legislation include:
- amendments to the current provisions regarding the holding and conducting of general meetings, including holding meetings electronically;
- an extension for an interim period of the debt thresholds for the commencement of a winding up by the court from €10,000 (for an individual debt) and €20,000 (for aggregate debts) to €50,000 in both cases;
- provision for conducting creditors' meetings electronically; and
- power of the court to extend the maximum period in which an examiner can present a report to the court by 50 days (to 150 days) in 'exceptional circumstances'.
It is expected that Brexit will have a further short-term negative effect on the Irish economy as a whole if no trade deal can be achieved by the December 2020 deadline. However, Ireland is an English-speaking jurisdiction, with a strong and long-standing common law jurisprudence. This provides familiarity of process and procedure regarding substantive legal principles to those accustomed to dealing with UK law. It is anticipated that these factors will enhance Ireland's attractiveness as a location for a corporate to base its COMI.
In 2019, a number of non-performing loan (NPL) portfolios were sold by Irish banks to private equity investors and it is anticipated that this trend will continue into 2020 with a further divestment of NPLs by Irish banks. This is likely to result in further enforcement proceedings although subject to any moratoriums which may be implemented in light of the covid-19 pandemic.
Pre-pack receiverships have been used very effectively in Ireland in recent years. They have also been successfully used in conducting loan-to-own schemes. There are no formal guidelines that govern pre-packs in Ireland and there has been little judicial consideration of the procedure.
There has been an increased interest in the potential use of Irish schemes of arrangement to effect corporate restructurings, particularly with regard to large corporate groups with entities registered in foreign jurisdictions. The Ballantyne and Weatherford restructurings and the recent approval by the Irish High Court of a scheme of arrangement in respect the Nordic Aviation group confirm Dublin as one of the most effective restructuring venues in the European Union, and is a clear endorsement that Ireland's restructuring regime can be used to implement complex cross-border restructurings quickly and effectively.
1 Julie Murphy-O'Connor is a partner, Kevin Gahan is a senior associate and Edward Kane is an associate at Matheson.
2 The Companies Act 2014, which came into operation on 1 June 2015, is primarily a consolidation of existing laws; however, certain provisions have been modernised and updated. As regards insolvency and restructuring, it has brought increased clarity of process and reduced court supervision of insolvency processes. In light of the covid-19 pandemic, the Irish government introducted The Companies (Miscellaneous Provisions) (COVID-19) Act 2020 (the 2020 Act) (discussed further below), amending certain provisions of company law for an interim period.
3 The EU framework is as follows: Council Regulation (EC) No. 1346/2000 of 29 May 2000 on insolvency proceedings for proceedings opened before 26 June 2017 (the original Insolvency Regulation); Regulation (EU) 2015/848 of 20 May 2015 on insolvency proceedings (the Recast Insolvency Regulation); Regulation (EU) No. 1215/2012 of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial (the Recast Brussels Regulation); and Regulation (EC) No. 593/2008 of 17 June 2008 on the law applicable to contractual obligations (Rome I) (the Rome Regulation).
4 Companies Act 2014, Section 509.
5 The 2020 Act proposes the possibility of a further extension of 50 days in 'exceptional circumstances'.
6 ibid., Section 449.
7 ibid., Section 564.
8 Section 571(5) of the Companies Act 2014 places a restriction on the right of a contributory to apply to have the company wound up. A contributory is not entitled to present a winding-up petition unless the shares of which the person is a contributory, or some of the shares, either (1) were originally allotted to the person or have been held by the person, and registered in the person's name for at least six months during the 18 months before the commencement of the winding up; or (2) have devolved on the person through the death of a former holder.
9 Section 510 of the Companies Act 2014 provides that shareholders are those holding not less than 10 per cent of shares carrying the power to vote at general meetings at the time of presentation of the petition.
10 Section 510 of the Companies Act 2014 provides that a creditor includes a contingent or prospective creditor of the company.
11 Companies Act 2014, Section 451(3).
12 Figures from the EU Commission, available at https://ec.europa.eu/economy_finance/forecasts/2020/summer/ecfin_forecast_summer_2020-economic-forecast-ireland-s-economic-growth- to-moderate-on-the-back-of-a-less-benign-external-environment_en.
13 Ibid, 12 above.
14 Ibid, 13 above.
15 Insolvency Service of Ireland, 'ISI 2020 Quarter 1 Statistics', available online at https://www.isi.gov.ie/en/ISI/ISI%20Statistics%20Report%20Quarter%201%202020.pdf/Files /ISI%20Statistics%20Report%20Quarter%201%202020.pdf
16 Healy v. Irish Life Staff Benefits Scheme & Anor  IEHC 28.