RISA Q3 2019 Technical Session David Livshiz Freshfields Nick - - PowerPoint PPT Presentation

David Livshiz – Freshfields Nick Herrod – Maples Group Michael Pearson – FFP John A Pintarelli – Morrison & Foerster

19 September 2019 Recovery & Insolvency Specialists’ Association

RISA Q3 2019 Technical Session

Agenda

Recent/Past Events

 RISA annual golf day – March 2019  Q2 Technical event – June 2019 (Norwich Pharmacal

relief)

Forthcoming Events

 Local Events

 2 October 2019 – AGM, committee nominations to

Sam Dawson or Hugh Dickson

 18 November 2019 – RISA/South Square – Ritz  Various IWIRC events (see next slide)  Xmas luncheon – early/mid December

Upcoming IWIRC Events

1 October 2019 Panel discussion on blockchain and cryptocurrency considerations in the context of insolvency and restructuring, sponsored by Deloitte CI $35 members / CI $50 non-members 9 October 2019 5 week sunset golf clinic (exclusive to IWIRC members) CI $130 ($26 per class) 20 November 2019 Sunset drinks sponsored by Ogier and Krys Global (exclusive to IWIRC members) Free for members

Agenda (continued)

 International Events

 Insol Hong Kong – 18 October 2019  Insol Toyko 7 November 2019 – conveniently week after

RWC final!

 Insol Bahamas 5 December 2019



South Square scholarship

1.

Huge success and congratulations to Zoe Nolan of Walkers for completing the scholarship

2.

In discussions with South Square to consider the same package for next year

Agenda (continued)

Attendance certificates

 Available on request to john.royle@uk.gt.com

Future topics/presenters

 As a reminder, if any members wish to present or have any

ideas for topics for future presentations, then please contact either john.royle@uk.gt.com or dmagennis@bdo.ky Presentation slides

 Available on the RISA website www.risa.ky

Your panel

Nick Herrod Maples Group Of Counsel, Cayman Islands +1 345 814 5654 nick.herrod@maples.com John A.Pintarelli Morrison Foerster LLP Partner, New York +1 212 336 4133 jpintarelli@mofo.com Michael Pearson FFP Director, Cayman Islands +1 345 640 5860 michael.pearson@ffp.ky David Livshiz Freshfields Bruckhaus Deringer Counsel, New York +1 212 277 4000 david.livshiz@freshfields.com

Madoff – two competing estates

US Debtor BLIMIS US Liquidation Proceedings Cayman Debtor Feeder Fund Cayman Liquidation Proceedings Subsequent Transferee Clawback US law $ $ Clawback Cayman law Clawback US law The bypass $

Contrast with parallel proceedings

US Chapter 11 Cayman Debtor Transferee Cayman Provisional Liquidation Clawback US law Clawback Cayman law $ $ $ US Chapter 15 $ Clawback Cayman law $ $ $

Cross-border insolvency – recognition and assistance

US

• Modified

model law – chapter 15

• CoMI analysis

Cayman

• Part XVII

Companies Law

• Common law
• Place of

incorporation Ascot

• Cayman

Fund/Cayman liquidation

• Legitimate

expectation Cayman law

Madoff - US Court of Appeals

Extraterritorial application

As long as a U.S. debtor makes initial transfer Money can be followed anywhere in the world through any number of subsequent transferees – but practical limitations

What about comity?

No parallel proceedings Feeder investors knew where the money was really going Efficiency Conflict with foreign liquidation not compelling US clawback laws more equitable

Disjointed in the US?

NY Bankruptcy Court US Court of Appeals

Are US clawback laws more equitable?

Received more than

• ther creditors/less

than equivalent value/defraud or delay Equal distribution/market certainty

US

Intent to defraud/dominant intention to prefer/knowledge Equal distribution/investor certainty Is NAV always NAV?

Cayman

Impact of Madoff

Comity

• What discretion does it give a court?
• Properly applied?

IP perspective

• Race to the court?
• Master feeder officeholder cooperation?

US court

• Can Cayman officeholders expect a warm reception?

Investors

• How easy will it really be for the trustee to recover?

Legitimate expectation of investors

What should the legitimate expectation depend on?

CoMI Place of incorporation Legal personality Economic reality

What comes next?

Supreme Court needs to take the case What factors will influence the Supreme Court? Timetable