INSOL International and The Institute of Company Secretaries

INSOL International and The Institute of Company Secretaries of India Educational Programme New Delhi

Welcome Ms. Preeti Malhotra, President, The ICSI

Proposed Insolvency Law Mr. Sumant Batra Vice-President INSOL International

Special Address Mr. Robert O. Sanderson President INSOL International

INSOL International § § § Independent Non-governmental Organization Recognized authority Knowledge repository Membership ascribes highest ethical standards and professional excellence

Membership § Over 9, 500 members § Over 40 Member Associations § Members from over 70 countries

INSOL’s Mission n “to take the leadership role in international turnaround, insolvency and related credit issues, facilitate the exchange of information and ideas and encourage greater international cooperation and communication amongst the insolvency profession, the credit community and related constituencies”

INSOL’s goals are: n Implement research into international and comparative turnaround and insolvency issues n Liaise and participate with Governmental, Intergovernmental and NGO advisory groups n Develop cross border insolvency policies, international codes and best practice guidelines n Leadership in international turnaround and insolvency education

INSOL Collaborates n World Bank, UNCITRAL, OECD, ABD etc. n Judicial Colloquium n Hawkamah

Publications § INSOL World – Quarterly § Electronic Newsletter - Monthly § Regular specialist publications § Treatment of Secured Claims in Insolvency and Pre- insolvency Proceedings 2007 § Credit Derivatives in Restructurings 2006 § Directors in the Twilight Zone 2005 § Employee Entitlements 2005

Technical Series § Economics and Geographical Implications of Hedge Funds in Distressed Debt; Sandra A. Larrat -Smith, Swing Bridge Capital & Steven P. Ordaz, BMC Capital § Formalities for the Transfer of Business in Insolvency; David Burdette, University of Pretoria, INSOL Scholar § Securities Law Claims in Insolvency Proceedings; Professor Janis Sarra, University of British Columbia

INSOL Shanghai INSOL Annual Regional Conference 14 -17 September, 2008 Shanghai, PRC

INSOL One Day Seminars § Brussels, 4 th March 2008 § Buenos Aires, 17 th April 2008 § Chicago, 10 th July 2008

INSOL Fellowship § § § Global Insolvency Practice Course Launched 1 st October First Course starts 2008 Intensive Programme Unique international learning experience § Facilitates future networks

Core Committee Bob Wessels, Professor University of Leiden, The Netherlands Ian Fletcher, Professor University College London, UK Janis Sarra, Associate Professor and Associate Dean, Faculty of Law, University of British Columbia, Canada Gareth Hughes, Ernst & Young LLP, INSOL Treasurer

Course Committee § § § § § University of Pretoria, South-Africa University of Cologne, Germany University College London, UK China University of Politics & Law, PRC University of Sussex, UK Queensland University of Technology, Australia University of British Columbia, Canada University of Leiden, The Netherlands. University of Texas, Austin, USA

Practitioner Advisory Committee Stephen Adamson INSOL Past President, Chair, UK Sumant Batra Kesar Dass B. & Associates, India David Cowling Clayton Utz, Australia James Garity Shearman & Sterling LLP, USA Adam Harris Bowman Gilfillan, South Africa Detlef Hass Lovells LLP, Germany Sijmen de Ranitz De Brauw Blackstone Westbroek, The Netherlands Bob Sanderson KPMG, Canada

Structure of Course Module A: Three day face to face meeting Date: 16 th – 18 th June 2008 Venue: Faculty of Law, University of Leiden, Netherlands. Module B: Date: Venue Three day face to face meeting 12 th – 14 th September 2008 Pudong Shangri-La, Shanghai, China. Module C: Date: The Five days on line sessions 3 rd – 7 th November 2008 In association with and organised by the National Centre of Business Law University of British Columbia, Vancouver, Canada

Mahesh Uttamchandani Senior Counsel and Head of Global Insolvency Initiative, World Bank: “The fellowship programme will be a very rewarding investment towards a successful career, both through helping the development of professional skills and through fostering a greater understanding of different jurisdictions' cultures and systems. ”

Special Address Mr. Robert O. Sanderson President INSOL International

Address by Chief Guest Mr. Shri Prem Chand Gupta Honorable Minister of Corporate Affairs

Vote of thanks Mr. N. K. Jain, Secretary & CEO, ICSI

Networking Coffee Break

Directors in the Twilight Zone Mr. UK Chaudhary, Senior Advocate & Past President ICSI Mr. Gordon Stewart, Allen & Overy LLP

DIRECTORS IN THE TWILIGHT ZONE AGENDA § § Director duties and the Twilight Zone in context The key areas of concern Practical problems and solutions The position in India U. K. CHAUDHARY, SENIOR ADVOCATE

DIRECTORS IN THE TWILIGHT ZONE IN CONTEXT § The role of insolvency law Ø NB: there is not enough money to go round Ø recycles the assets Ø avoids a free-for-all § The role of directors Ø the veil of incorporation and risk-taking Ø piercing the veil: personal liability of directors § Consensual restructuring -v- formal insolvency Ø restructurings: avoid stigma and insolvency ‘dislocation’ Ø when would formal insolvency be better? Ø ‘pre-pack’ insolvency to force through restructuring U. K. CHAUDHARY, SENIOR ADVOCATE

DIRECTORS IN THE TWILIGHT ZONE IN CONTEXT II § Insolvency laws: history and pro-creditor or pro-debtor bias Ø world maps U. K. CHAUDHARY, SENIOR ADVOCATE

DIRECTORS IN THE TWILIGHT ZONE U. K. CHAUDHARY, SENIOR ADVOCATE

DIRECTORS IN THE TWILIGHT ZONE U. K. CHAUDHARY, SENIOR ADVOCATE

DIRECTORS IN THE TWILIGHT ZONE U. K. CHAUDHARY, SENIOR ADVOCATE

DIRECTORS IN THE TWILIGHT ZONE IN CONTEXT II § Insolvency laws: history and pro-creditor or pro-debtor bias Ø world maps § The insolvency timeline Ø the Twilight Zone Ø keeping everyone ‘honest’ Ø restoring the pot (of assets) U. K. CHAUDHARY, SENIOR ADVOCATE

DIRECTORS IN THE TWILIGHT ZONE Start of clawback vulnerability period IN CONTEXT THE INSOLVENCY TIMELINE Duty to commence insolvency (? ) Financial Health Dissolution Twilight Zone Administration/ Liquidation Formal insolvency commences U. K. CHAUDHARY, SENIOR ADVOCATE

DIRECTORS IN THE TWILIGHT ZONE KEY AREAS – WHO IS A ‘DIRECTOR’? § Directors Ø de iure Ø de facto Ø shadow directors Ø non-executive directors § Who else is in the firing line? Ø banks? Ø parent and sister companies? Ø shareholders? Ø counterparties in the Twilight period? U. K. CHAUDHARY, SENIOR ADVOCATE

DIRECTORS IN THE TWILIGHT ZONE KEY AREAS – PENALTIES FOR DIRECTORS § Personal liability for losses Ø wrongful/fraudulent trading Ø negligent management? § Disqualification as a director Ø removing the privilege of limited liability Ø the badges of unfitness, eg: • responsibility for insolvency • implication in preferences, undervalues etc • failures to provide information U. K. CHAUDHARY, SENIOR ADVOCATE

DIRECTORS IN THE TWILIGHT ZONE KEY AREAS – RESTORING THE POT § Clawbacks Ø preferences Ø undervalue transactions Ø other security vulnerabilities • voidness for non-registration • invalid floating charges U. K. CHAUDHARY, SENIOR ADVOCATE

DIRECTORS IN THE TWILIGHT ZONE PRACTICAL PROBLEMS AND SOLUTIONS § Groups of companies Ø directors and conflicts of interest Ø ‘group benefit’/interlocking fates of group companies? § Foreign corporations Ø subject to local insolvency? Ø conflicts of laws § Insurance Ø a panacea, a help or a mirage? Ø limits on cover § Practical steps Ø take professional advice Ø board minutes of decisions and reasons U. K. CHAUDHARY, SENIOR ADVOCATE

INDIAN POSITION Special provisions Under SICA 2002 Provisions Under Companies Act 1956 Start and duration of Twilight Period On what does “Twilight zone” depend Issues on Twilight Zone. Actions giving rise to liability Who may be Liable Orders Passed by the court / Tribunal Enforcement U. K. CHAUDHARY, SENIOR ADVOCATE Impact on counterparties Remedies

Introduction to “Twilight Zone” v Twilight Zone with respect to Indian Companies is a period of financial distress for a company v A Period after which either the sun finally sets for a company, or efforts for its revival gets approval in a case of a Sick Industrial Company, by the Board for Industrial and Financial Restructuring (BIFR) or its Appellate Authority and in case of a company under winding up by the High Court concerned. v The Twilight Zone starts from the day when obligation to file reference under section 15 of the Sick Industrial Companies (Special Provisions) Act, 1985 (SICA) finally arises in case of a Sick Industrial Company after loss of its 50% Net worth and in case of any other company on the presentation of a creditors winding up or any other winding up petition under the provisions of Companies Act (section 433) for its inability to pay debts or for any other reason. That such proceedings are governed by the provisions of Companies Act, 1956 or SICA as the case may be. v During Twilight Zone in essence, Directors’ responsibilities change from protecting shareholders or the company’s interest to protecting the interest of creditors. U. K. CHAUDHARY, SENIOR ADVOCATE

§ • ISSUES ON COMPANIES (SECOND AMENDMENT) ACT 2002 & SICA In December 2002, the Parliament passed the Companies (Second Amendment Act 2002) paving the way for a new insolvency regime providing for a composite law dealing with both reorganization and liquidation proceedings. • A new Part VIA was inserted in the 1956 Act for the purpose However, the second amendment has yet to be implemented apart from limited provisions facilitating the setting up of National Company Law Tribunal. • SICA was first enacted in the year 1985 and is amended from time to time till its repeal, which is not yet notified Consequently, the repeal of SICA remains unnotified until the NCLT is constituted, and until then the old SICA continues in operation Once the Amended or New Companies Act is implemented all reference in this chapter to the words “Court” and “BIFR” will then have to be read as “NCLT” U. K. CHAUDHARY, SENIOR ADVOCATE

“Start and duration of Twilight Period” Under SICA 1985 No definite period has been prescribed during which transactions entered into by a company are vulnerable to attack or liable to give rise to personal liability on the part of directors and / or others involved in the management of the company The Period and liability of the directors and other officers will vary depending up on the following factors: When 50% of company’s Net worth is eroded at the end of any financial year BOD is required to intimate BIFR by filing a mandatory reference under section 23 of the Act within 60 days from the finalisation of Annual Accounts and hold a general meeting of the shareholders to report such erosion with a proper report with causes for such erosion. In case where BIFR forms the opinion that the company cannot be revived and that it to be wound up. The recommendation to wind up is sent to High Court concerned. If the company fails to notify the BIFR as above, all the directors and other officers are liable to imprisonment of not less than six months and up to two years and a fine. Contnd…. 2 U. K. CHAUDHARY, SENIOR ADVOCATE

When entire net worth is eroded under the definition of Section 3(1)(o), BOD is required to file reference under Section 15 of the Act, within 60 days from the finalisation of the Annual Accounts or earlier, if BOD has reason to believe that net worth has been eroded. BIFR will make suitable enquiry under section 16 and on completion of inquiry make suitable orders under section 17 and sanction a scheme under section 18 and take steps to revive the company. The Directors are bound by all directions, obligations and conditions imposed by BIFR in doing so. If BIFR is of the opinion that Sick Industrial company is not likely to make its net-worth positive with in a reasonable time and its not likely to become viable, it can frame its opinion for winding up of the Sick Industrial Company under section 20 and refer the matter to High Court concerned and winding up will then start under the provisions of Companies Act 1956. The violation of the Act, including not filing of reference under Section 15 is a punishable offence with simple imprisonment which may extend to 3 years and also fine. U. K. CHAUDHARY, SENIOR ADVOCATE

Director’s Responsibilities in Twilight Zone Under SICA § Under Section 24 of the Act, any person, who has taken part in promotion, formation or management of the Sick Industrial Company or its undertaking, including any past or present directors, Manager or officer or employee of Sick Industrial Company, if found guilty of Misfeasance, regarding its property, assets or funds, BIFR by order may direct him to repay or restore the money or property to the Sick Industrial Company. § Similarly if BIFR has evidence, in its possession that any person, who is or was a director or an officer or an employee of a Sick Industrial Company, who has diverted funds or property with out bonafide purpose or managed the company in a manner highly prejudicial to the interest of the company, BIFR by order may direct that such person shall not received any financial assistance from any Financial Institution and bank as may be specified. U. K. CHAUDHARY, SENIOR ADVOCATE

Companies Act, 1956 Directors Responsibility in Twilight Period under Companies Act 1956 Fraudulent Preferences Avoidance of voluntary Transfer of assets to trustees for benefit of all Creditors to be void Avoidance of transfers after commencement of voluntary winding up Other Liabilities and Obligations U. K. CHAUDHARY, SENIOR ADVOCATE ALLEN & OVERY

Directors Liabilities – Various Issues Under the Companies Act 1956 § Maintenance of Proper Accounts Under Section 446 A, inserted by Companies (Second Amendment) Act, 2002 and 541 directors and other officers of the company are under Legal Obligation to ensure that books of accounts are to be completed/ audited up to date of the winding completed order and submitted to the tribunal failing which such directors and officers shall be liable for punishment for a term not exceeding one year and fine not exceeding one lakh rupees. § Filing of Statement of Affairs Under Section 454 of the Act, a statement of affairs shall be submitted to the official liquidator duly verified by one or more persons, who are at relevant date are the directors, manager, secretary or other chief officer of the company. The responsibility can also be cast up-on ex-directors or persons associated with formation of the company, ex- employees or officers with in one year of the relevant date. The offence is punishable by imprisonment not exceeding two years or fine. § Falsification of Company’s Books Under Section 539, any officer or contributory of a company, which is being wound up, if with intent to defraud or deceive any person, a) destroys, mutilates, alters, falsifies or secrets, or is privy to the destruction, mutilation, alteration, falsification or b) secreting of any books, papers or securities; or c) b) makes or is privy to the making of, any false or fraudulent entry in any register, books of account or document belong d) to the company. He shall be punishable with an imprisonment for a term of 7 years and shall be liable to fine. U. K. CHAUDHARY, SENIOR ADVOCATE ALLEN & OVERY

Directors Liabilities – Various Issues Under the Companies Act 1956 § Fraudulent conduct of Company’s Business Under Section 542 officers or persons are guilty of fraudulent conduct of business if, in the course of winding up of a company, it is found that any business of the company has been carried on with intent to defraud creditors of the company or any other person , or for any Fraudulent purpose. Persons engaged in the conduct of the business shall be personally responsible, with out any limitation of liability, for all or any of the debts and other liabilities of the company. § Delinquency, Breach of Trust & Misfeasance: Directors and others Under Section 543 any Person who has taken part in the formation or formation of the company, or any past or present director, manager, Liquidator or officer of the company shall be guilty of delinquency, if he: a) He misapplied or retained or become liable or accountable for any money or property of the company; or b) Has been guilty of any misfeasance or breach of trust in relation to the company: c) Liability under this provision is civil § Transactions defrauding Creditors Under Schedule XI of the companies act 1956 directors can be punished for such activities, which amount to malfeasance and misfeasance. U. K. CHAUDHARY, SENIOR ADVOCATE ALLEN & OVERY

Directors Liabilities – Various Issues Under the Companies Act 1956 § Handing over assets and properties of the company. . Under Section 450 and 456, the directors are under obligation to hand over all assets and properties and actionable claims, to a provisional liquidator or the official liquidator as the case may be. In case of final winding up order, and in case of provisional liquidator under section 47 all books of accounts and statutory registers and books and papers will be handed over to the official Liquidator. Violation is punishable with imprisonment not exceeding 5 years or with fine or both or for the period of imprisonment not exceeding two years or fine or both. as the case may be under the section 538. § Fraudulent Preferences Under section 531 of the Act, any transfer of Property, movable or immovable, delivery of goods by or against the company With in six months from commencement of winding up would be fraudulent preference and in the event of company being wound up be deemed a fraudulent preferences of its creditors and be invalid. Similarly under section 531 A, any Transfer of property or delivery of goods made by a company, not being a transfer or delivery in the ordinary course of its business or in favour of a purchaser in good faith and for valuable consideration made with in one year before the presentation of the petition for winding up or passing of a resolution for voluntary winding up shall be void against the liquidator. Similarly under Section 532 of the Act, any transfer or assignment by a company of all its properties to trustees for the benefit of all its creditors shall be void. U. K. CHAUDHARY, SENIOR ADVOCATE ALLEN OVERY

Counter Parties Dealing with the company during the Twilight Period The Potential heads of Challenge which may lead to transactions being set aside relate to transactions are: ü Transactions which are at an undervalue ü Fraudulent Preferences ü Defrauding creditors ü Extortionate credit transactions ü Avoidance of floating charges for past value. ü Disclaimer of onerous property ü Disposition of Company’s property made after the commencement of winding up. ü Failure to register a charge ü Avoidance of Voluntary transfer U. K. CHAUDHARY, SENIOR ADVOCATE ALLEN & OVERY

Orders which may be the court / Tribunal üTo Pay compensation to company üTo discharge Liability to creditors üDisqualifying from acting as director üImprisonment or fine or both üSetting aside "tainted" transaction üPostponing any debt owed by company to director U. K. CHAUDHARY, SENIOR ADVOCATE ALLEN & OVERY

Pros and cons Pros § Stop recklessness before too late § Encourages responsible management § Incentive to hire professionals Cons § Accelerates collapse § Inhibits workouts § Weakens enterprise initiative § Increases risk to lenders & introduces uncertainty U. K. CHAUDHARY, SENIOR ADVOCATE ALLEN & OVERY

Obligation to co-operate in investigation of affairs of the company. Underthe 1956 Act and SICA officers agents, and present, the and past of company are required to co-operate with investigation into affairs of the compan The General duty to cooperate where: ü Proceedings are pending before BIFR / AAIFR under SICA, even though this is an investigation prior to recommendation to wind up the company. ü A winding up petition has been presented ü A provisional or official liquidator has been appointed. ü The company goes into liquidation or ü A winding up order has been made by the court ü Obligation to provide information ü Obligation to provide company’s statement of affairs ü Obligation to assist with getting in the company’s property. U. K. CHAUDHARY, SENIOR ADVOCATE ALLEN & OVERY

Directors in the Twilight Zone Mr. UK Chaudhary, Senior Advocate & Past President ICSI Mr. Gordon Stewart, Allen & Overy LLP

Managing Expectations of Stakeholders and Parties in a Restructuring / Liquidation Mr. B. N. Bahadur, BBK Mr. Robert Hertzberg, Pepper Hamilton LLP Mr. Ashwani Puri, Pricewaterhouse. Coopers

Managing Expectations Of Stakeholders And Parties In Restructuring/Liquidation

Agenda • Section 1 – Context and Issues • Section 2 – Financial Assessments for Troubled Companies • Section 3 – Expectations of Stakeholders in Restructuring

Context and Issues Section 1

Current Indian Situation • Section 22 of SICA misuse by debtor to thwart creditor action. Significantly redressed for “secured creditor” purpose by SRFAESI • Lead in Restructuring Plan either by Company in restructuring under 391 -394 or by the lead bank / institution under SICA. Lead Institution typically Bank / FI • Emphasis on protection of secured creditor interest, particularly Banks / FIs • Difficult to obtain turnaround finance. Reluctance of secured creditors to “make room” for new finance • Sequential, long drawn liquidation process; Limited involvement of professionals: low realization / distribution

Irani Committee Key Recommendations • Balance between rehabilitation and liquidation and ease of conversion • Insolvency process to be overseen by a neutral forum (NCLT / NCLAT) in a non-intrusive manner • Substantial role envisaged for professionals / Insolvency Practitioners • Time bound process: One year for rehabilitation process (Limit appeals), Two years for liquidation process (Stage-wise time limits)

Irani Committee Key Recommendations • Limited Standstill period - not automatic - to allow opportunity to explore restructuring • Rehabilitation Proposal Initiation – Debtor – Creditors – 3/4 th in value • Governance and Creditors Committees – Secured creditors committee – Separate committee for unsecured creditors / other stakeholders – no right to vote on the plan and other decisions

Managing Diverse Stakeholder Interests • Debtor • Secured Creditors – Fixed and Floating charge holders – Other secured creditors • Unsecured Creditors including inter alia – – • • Uncovered dues of secured creditors Typical Supplier Dues (excluding unpaid supplier lien) Fixed Deposit Holders Others Employees Equipment Lease Finance Providers Government / Utilities New Finance Providers

Issues • Unsecured Creditors rights inadequately protected ? • Smaller Creditors be given preferred treatment ? • Balancing rights of various categories of secured creditors and expeditious proceedings • Access to information to allow creditor representative to assess viability and formulate restructuring plan • Facilitating turnaround financing in viable cases

Financial Assessments for Troubled Companies Section 2

Assessing the financial condition of a company in financial difficulty The timeline to disaster: • Healthy Uncertain Stressed Financial statements look good Operating Metrics look poor Distressed Financial statements look poor

The Early Stages of Difficulty • Watch the Operating Metrics: 1. Labor Productivity 2. Quality Issues 3. Scrap Increases 4. On time delivery (Shipment Compliance) 5. Employee turnover • Employee Surveys could be used

In the Later Stages of Difficulty • Financial condition will show in financial statements – Watch the financial ratios on liquidity • Companies need to restructure due to lack of cash not from too much debt

Expectations in a Restructuring – Providers of new funds – Debtor (the Company) – Employees – Customers

Sources of New Funds • Traditional Lending Institutions – Commercial banks – Asset Based Lenders • Private Equity/Hedge Funds – Equity Investment will require control of the company – Second Lien or “B” loan • Private Investors • Quality Financial Projections

Expectations of the Debtor (Management) • Retain control • “Save” his company • “Save” his job

Expectations of the Employees • Communication from management • Continued employment

Expectations of Customers • Continued parts production • Constant communication • Resolve the problem

What will the parties have to forego in a restructuring? • Change of control • More financial focus • Some Management Changes

Management during the Restructuring • Extremely busy time

The Best Advice - Hire Qualified Professionals - Legal Counsel - Financial Advisor

Expectations of Stakeholders in Restructuring Section 3

Expectations in a Restructuring • When a company is in a restructuring situation, ALL stakeholders have to be considered: - Debtor (the Company) Employees Secured Creditors Unsecured Creditors Shareholders Providers of New Funds

Expectations in a Restructuring • Debtor (the Company) – Sufficient time to fix or sell the business – To be able to evaluate internal operating procedures or metrics to determine possible areas for improvement – Responsible for providing information to all constituencies to drive a consensual (if possible) process – Viable (fixable) business or sale process – Plan to exit out of court workout or bankruptcy

Expectations in a Restructuring • Employees – Assurance that will not lose jobs – Do not want, but expect, demands for reduced wages & fewer benefits – New processes, new technology, “re-thinking” of business and operations – With good communication, involvement in and support of restructuring. With poor communication, opposition to needed changes – Company and other stakeholders’ commitment to long term viability of company

Expectations in a Restructuring • Secured Creditors – Prepetition lender of company in bankruptcy • Use of cash collateral if liens on accounts receivable • Possible DIP lender – Cost of borrowing and interest rates • Impact on unsecured creditors – Adequate protection payments • Compensate for deteriorating collateral (M&E, cash position, accounts receivable) – Additional security – Issue of unsecured creditors – any value below secured creditors?

Expectations in a Restructuring • Unsecured Creditors – Expect poor treatment & poor communication – With good communication, however, expectations can be changed • Creditor is valued and needed • Balance between creditor’s demands for payment and continued supply • Overcome fears to ensure continued credit – Continue to ship to company on COD or credit terms – May band together to be more effective • Official Unsecured Creditors’ Committee in a Chapter 11 represents all unsecured creditors’ interests – Suppliers may want long term relationship with company after reorganization is completed

Expectations in a Restructuring • Shareholders – Usually lose any shareholder interest in company – Unless restructuring very successful, shareholders will get nothing – Often will band together in unofficial committees or groups to leverage a recovery – Unsecured creditors often become the “new” shareholders, replacing the former shareholders in debt-for-equity swaps

Expectations in a Restructuring • Providers of new funds - Want detailed and accurate historical information - Cash flows Expected cash needs Debt structure Unencumbered assets - At the same time, company can’t “give away the farm” to get new funding

Expectations in a Restructuring • Sources of New Funds - Banks Private Equity Funds Hedge Funds Private Investors - Providers of New Funds Want: - Ownership - “Loan to Own” strategy - Rights offering - Control - Workable plan for exit from out of court restructuring or bankruptcy - Agreements with suppliers and customers

Managing Expectations of Stakeholders and Parties in a Restructuring / Liquidation Mr. B. N. Bahadur, BBK Mr. Robert Hertzberg, Pepper Hamilton LLP Mr. Ashwani Puri, Pricewaterhouse. Coopers

Delegate Lunch

Best Practices from Overseas - To Consider in India Mr. Kirtee Kapoor, Davis Polk & Wardwell Dr. K. S. Ravichandran, Practicing Company Secretary Mr. Robert O. Sanderson, KPMG LLP

Networking Coffee Break

Global Approach to Insolvency and Restructuring Robert Lemons, Weil, Gotshal & Manges LLP Sally Willcock, Weil, Gotshal & Manges LLP Mr. Justice A. K. Sikri, Delhi High Cout

Importance n Promotion of trade & investment n Greater legal certainty n Fairness to creditors n Maximisation of value to protect investments n Protection of debtors n Facilitates rescue n Protects jobs

End Game n Create restructuring plan n Single distribution mechanism n Bind all creditors across jurisdictions n Maximise value n Identify most advantageous available lead forum n Determine need for other proceedings to bind local creditors

Recognition Tools n Common law jurisdictions – comity n Regional co-operation treaties/statutory provisions n UNCITRAL Model Law on Cross-border Insolvency n Within Europe: EC Regulation on Insolvency Proceedings 2002

UNCITRAL Model Law on Cross-border Insolvency n Operative characteristics = access, recognition, relief n Encourages direct communication & cooperation between domestic courts & foreign courts & representatives n Adopted by several nations n US: chapter 15 of US Bankruptcy Code n UK: Cross-border Insolvency Regulations n Increasing uptake by other nations

US Bankruptcy Code – Chapter 15 n Allows petition by foreign representative for recognition of foreign proceeding n Court required to recognize foreign proceeding unless “manifestly contrary” to US public policy n Main proceeding = foreign proceeding pending in “center of main interest” n Non-discretionary relief for main foreign representative includes: n Stay applies to debtor & US property n Bankruptcy Code sections regarding use of property apply to transfers of US property n Power to operate debtor’s business

Chapter 15 (continued) n Court has broad power to order additional discretionary relief in main or non-main proceeding n Concurrent plenary proceedings n Main foreign representative may file voluntary chapter 7 or 11 case over US assets n Non-main foreign representative may file involuntary chapter 7 or 11 case (requires insolvency showing) n Court can order provisional relief pending chapter 15 petition ruling n Court must co-operate, & may communicate, with foreign courts & representatives

EC Regulation on Insolvency Proceedings 2002 n Mandatory rules to determine n Applicable insolvency law n Applicable jurisdiction n Provisions requiring office holder to cooperate where there are main & secondary proceedings n Applies to entities with their ‘centres of main interests’ in EC (presumption that it equates to registered office) n Similar definitions appear in UNCITRAL

Co-operation Between Courts & Office Holders n Protocols n Maxwell n Federal Mogul n Communication between courts n The American Law Institute (“ACI”) Guidelines n Cenargo n T&N n Deference between courts n Yukos

Global Approach to Insolvency and Restructuring Robert Lemons, Weil, Gotshal & Manges LLP Sally Willcock, Weil, Gotshal & Manges LLP Mr. Justice A. K. Sikri, Delhi High Cout

Summary and Close of Seminar

INSOL International and The Institute of Company Secretaries of India Educational Programme New Delhi