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Vol 23 No 3 March/April 2018

Book of the Month

Cover of Scamell and Gasztowicz on Land Covenants

Scamell and Gasztowicz on Land Covenants

Price: £225.00

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Pensions and Corporate Insolvency: A Practitioner's Guide

ISBN13: 9781846615559
Published: February 2013
Publisher: LexisNexis Butterworths
Country of Publication: UK
Format: Hardback
Price: £126.99

In stock.

The ongoing arguments on the priority of pensions liabilities in an administration or a liquidation, in the case of Bloom v The Pensions Regulator, reaches the Supreme Court in 2013.

The case focuses on the Regulator's rights where it issues its notice after the commencement of the administration of the recipient. It was held by the High Court and the Court of Appeal to rank as administration expenses, ahead of unsecured creditors and the administrator's own fees. Many see this as an anomaly, and are waiting for the Supreme Court or Parliament to adjust the legal position again.

At the same time, the Regulator continues to assess its ability to impose its powers in the UK and overseas. Following the success with Sea Containers Limited, where the financial support direction gave rise to an agreement which was upheld by the Delaware bankruptcy courts, the Regulator has had much more limited success pursuing the Nortel Networks group overseas, meeting resistance from the courts both in the US and Canada.

At the same time, its contribution notice in relation to the Bonas Group Pension Scheme was settled at a much reduced figure out of court, following some significant criticism of its approach in Michel van der Wiele v the Pensions Regulator 2011. All of this happens in the context of the English common law's position on the enforcement of foreign judgments having been further refined by the Supreme Court's October 2012 decision in Rubin v Eurofinance.

Insolvency Law, Pensions Law
Introduction to Insolvency Law

Summary of main insolvency procedures
Directors' duties and liabilities
Disqualification orders

Introduction to Pension Schemes and Pensions Law

The Pensions Regulator
The Pension Protection Fund

Preparing for Insolvency

Involving the trustees
Trustee powers
Involving the Regulator
Involving the PPF
Continuing the business

The Advisers and their Roles

The advisers
The advised
Shared advisers and conflicts

Financial Assessments

What is the employer covenant and why is it important?
Scheme recourse to employers, guarantees and structural priority
The benefits of independent covenant review
Covenant monitoring, KPIs and triggers
What information is required by trustees, employers and other parties in distressed situations?
Estimated outcome statements

Negotiation with the Parties: A Cacophony of Competing Interests

The trustees
The Regulator
The Pension Protection Fund
Relationship between the PPF and the Regulator
The employer
Other parties

Structure of the Insolvency

PPF Equity Requirement
Use of a rescue vehicle

The Assessment Period and PPF Entry

Notification obligations
The Funding Assessment
Preparing for entry in the PPF Assessment Period
Administering the scheme in the Assessment Period
PPF benefit levels
Coming out of the Assessment Period
The effect on the ongoing business

Restructuring without an Insolvency Process

Changing the Schedule of Contributions
Managing pension liabilities
Making changes: moral hazard, type A events and clearance

Proceeding without Clearance

The pitfalls of a consensual approach
Seeking advice to quantify regulatory risk
Lessons for Corporates from the Bonas CN
The Great Lakes Settlement-the Regulator achieves its goal without full recourse to moral hazard

International Issues

Exporting the Regulator's Powers
The theory
Approach of foreign courts
The practice