Bermuda – The Insolvency Review – Edition 10.

INSOLVENCY LAW, POLICY AND PROCEDURE

I STATUTORY FRAMEWORK AND SUBSTANTIVE LAW

Bermuda is an overseas territory of the United Kingdom, and its legal system is based on English common law, which comprises statute and case law. Decisions of the English courts are not binding on a Bermuda court, but they are highly persuasive. Generally speaking, the decisions of the Privy Council are, however, binding on the Bermuda courts unless they are based on a reference from a jurisdiction with significantly different statutory provisions. The Privy Council is Bermuda’s highest appellate court and sits in London.

Bermuda’s insolvency law statutory framework consists of statute and common law. The principal statutory provisions governing corporate insolvency and restructuring are contained in Part XIII of the Companies Act 1981 (Companies Act), and are supported by the Companies (Winding-Up) Rules 1982 (Companies Winding-Up Rules). The Companies Act is based on the UK Companies Act 1948 and the Companies Winding-Up Rules are based on the UK Companies (Winding-Up) Rules 1949.

At the heart of Bermuda insolvency law is the pari passu treatment of unsecured creditors – that is, where a company has insufficient assets to satisfy its debts to unsecured creditors, each unsecure creditor would receive an equal distribution on a rateable basis according to the quantum of their claim.² Secured creditors are generally unaffected by insolvency proceedings in Bermuda and may enforce their security in accordance with the terms of the governing security instrument³ (although they have standing to present winding-up petitions).

The Companies Act provides the ability to challenge certain transactions executed by insolvent companies through avoidance or ‘clawback’ provisions, including the avoidance of preferential payments to creditors and transactions at an undervalue. The Companies Act also provides remedies for fraudulent trading and dispositions of company property after the commencement of the winding up.

The Companies (Winding-Up) Rules 1982 were significantly amended in 2020 by the Companies (Winding-Up) Amendment Rules 2020. Some of the most significant changes include the expansion of the list of people permitted to inspect the court file, rationalisation of service of documents provisions, the tightening up of advertisement provisions and the addition of a requirement to produce a certificate of compliance before a petition is heard. In addition, it is notable that, pursuant to the new rules, if a sole liquidator is appointed, that liquidator must be resident in Bermuda; and, on the appointment of joint liquidators or provisional liquidators, at least one of them must be resident in Bermuda and his or her credentials must be accepted by the court.

The changes made in relation to access to the court file make it easier for creditors and contributories of a company being wound up to access the documents that have been filed with the court. Previously, in order for a creditor or contributory to gain access to the court file, his or her claim or proof of debt must have already been admitted. Outside of these categories of persons, the only other people who could gain access to the court file would be an officer of the company or the Registrar of Companies. Now, any person who produces a sworn statement confirming that he or she is a creditor of the company may inspect the court file on a winding-up proceeding and obtain copies of any documents thereon.

II POLICY

Bermuda is a creditor-friendly jurisdiction. A key feature of the Bermuda insolvency regime is the Bermuda court’s development of a rescue culture. Where a company is insolvent, rather than making a winding-up order immediately upon hearing the petition, the Bermuda court often appoints provisional liquidators on a ‘light touch’ basis whose primary focus is to assist the company explore the merits of a restructuring plan. A provisional liquidator is an officer of the court (typically an insolvency practitioner or accountant) appointed for a limited purpose with clearly defined powers (‘light touch powers’), which may be used where there is a prospect of ‘rescuing’ an insolvent company through restructuring without the displacement of all of the Board’s executive functions. Restructurings are often achieved through a scheme of arrangement. In a light touch provisional liquidation, a company may continue its business operations as usual, pending the implementation of a restructuring plan.

Through the appointment of provisional liquidators with light touch powers and the court’s broad discretion to determine the allocation of powers and responsibilities between provisional liquidators and company directors, the court continues to create lifelines for a healthy recovery of distressed companies and for the protection of creditor interests.

Another key element of the Bermuda insolvency landscape is the willingness of the Bermuda court to work in tandem with and to lend assistance to foreign courts and Bermuda companies having interests in other jurisdictions where there is a substantial international creditor or asset base.

III INSOLVENCY PROCEDURES

The insolvency and rescue procedures available under Bermuda law are as follows:

• liquidation under the supervision of the court (also known as compulsory liquidation);
• provisional liquidation on a ‘full powers’ basis;
• provisional liquidation for the purpose of restructuring; and
• schemes of arrangement.

LIQUIDATION UNDER THE SUPERVISION OF THE COURT

Typically, a creditor seeking to place a debtor into insolvent winding up in Bermuda will present a petition to the court seeking relief on the grounds that that company is unable to pay its debts; or it is just and equitable for the company to be wound up. Once appointed, the liquidator must obtain the sanction of the court or the committee of inspection before taking certain actions. Upon the final distribution of the assets to the creditors or the members, the liquidator must obtain an order from the court for its release and for the dissolution of the company.

PROVISIONAL LIQUIDATION ON A FULL POWERS BASIS

Where there is a risk that the company’s assets may be dissipated prior to the hearing of the petition, a provisional liquidator may be appointed on an ex parte basis to take control of and safeguard the assets. A court typically appoints a provisional liquidator on a full powers basis where there is a suspicion of fraud or where cogent evident exists demonstrating a likelihood that the directors may dispose of assets if tipped off about an impending winding-up petition. This form of provisional liquidation is known as ‘provisional liquidation on a full powers basis’ contrasted with provisional liquidation on a light touch basis (discussed below).

PROVISIONAL LIQUIDATION FOR THE PURPOSE OF RESTRUCTURING

As indicated above, where a company is insolvent, rather than making a winding-up order immediately upon hearing the petition, the Bermuda court often appoints provisional liquidators on a light touch basis. Authority for provisional liquidators with light-touch powers is not found in the Companies Act or any other legislation, but rather in the Bermuda common law. The Bermuda court has used provisional liquidation as a tool to restructure the affairs of a company, preserve value in a business and to provide a platform for distressed companies to recover, which together promotes the sustainability and success of cross-border business.

The provisional liquidators are subject to the supervision of the court and will typically provide periodic updates to the court on the status of a restructuring in the form of reports.⁴

SCHEMES OF ARRANGEMENT

A scheme of arrangement is the only court-supervised restructuring or reorganisation procedure in Bermuda, provided for in Sections 99 and 100 of the Companies Act. A scheme of arrangement may be initiated by the company, any member or creditor of the company or, where applicable, a liquidator who has been appointed in relation to the company. A proposed scheme must represent a compromise or arrangement between the company and its creditors or members, or any class thereof.

Proceedings are started by applying to the Bermuda courts for directions to convene meetings with the various classes of creditors or shareholders who will be affected by the scheme’s proposals. Once the meetings have been held and the statutory voting thresholds have been met, a further application is made to the court to sanction the scheme.

Classes of creditors are determined by the requirement for a class to be confined to those persons whose rights (as affected by the proposed scheme) are not so dissimilar as to make it impossible for them to consult together with a view to their common interest.

For a scheme to be presented to the Bermuda courts for sanction, a majority in number representing 75 per cent in value of the creditors or members present and voting either in person or by proxy at each creditors’ or members’ class meeting, as the case may be, must approve the scheme.

To ‘cram up’ or ‘cram down’ (as those terms are generally understood in reorganisation proceedings) of a scheme of arrangement on to any dissenting class of creditors or members is not permitted in a Bermuda scheme of arrangement. To the extent that any single class of affected creditors or members fails to approve the scheme of arrangement by the requisite majorities, the scheme will fail in its totality.

IV STARTING PROCEEDINGS

Statutory winding-up proceedings can be commenced by any one or more of the following:

• the company itself;
• creditors, including any contingent or prospective creditors. However, the court will not give a hearing to a winding-up petition presented by a contingent or prospective creditor until:

• security for costs has been given; and
• a prima facie case for winding up has been established;

• contributories, subject to certain restrictions; and
• regulators (if applicable).⁵

The mode of beginning winding-up proceedings is by filing a winding-up petition with the Supreme Court of Bermuda, supported by a standard form affidavit verifying the contents of the petition. Once the court fixes a date for the hearing of the petition, the petition must be served on the company at its registered office. Before the hearing of the petition, the petitioner must obtain a certificate of compliance from the Registrar of the Supreme Court certifying that the petition is ready for hearing because it has been properly filed, served and advertised in an appointed newspaper.

Those intending to appear at the hearing of the petition, including those who wish to oppose the petition, are required to provide advance written notice to the petitioner within a prescribed time frame, failing which they require special leave of the court to appear at the hearing.

On hearing a winding-up petition, the court may grant, dismiss or adjourn the petition, or make any other order it thinks fit. It is unlikely that the court would grant a stay of winding-up proceedings, save in exceptional circumstances. However, the court regularly adjourns winding-up petitions. It is now well established that adjournments can be granted to facilitate a proposed restructuring by provisional liquidators who may be appointed under Section 170 of the Companies Act 1981. This is where the court is satisfied that a restructuring will produce a better result than a winding up for creditors. As stated by Kawaley CJ in Z-OBEE Holdings Ltd [2017] Bda LR 19: ‘This provision has for almost 20 years been construed as empowering this Court to appoint a provisional liquidator with powers limited to implementing a restructuring rather than displacing the management altogether pending a winding up of the respondent company.’ Benefits of this approach include:

• the stay of proceedings against the company triggered by the appointment of provisional liquidators; and
• independent oversight of the restructuring by court officers focused on protecting creditor interests.

V CONTROL OF INSOLVENCY PROCEEDINGS

The court orders the winding up of the company by one or more liquidators when it grants a winding-up petition. Liquidators are officers of the court and, accordingly, under the supervision of the court. They are commonly appointed from accountancy firms. The Official Receiver, a public officer, acts as a liquidator when nobody else is appointed. Following the making of a winding-up order, the court’s role is primarily supervisory. Liquidators can return to court for directions regarding any particular matter arising in the winding up and they require approval of either the court or committee of inspection before exercising certain of their statutory powers, for example, deciding to bring or defend legal proceedings on behalf of the company.

In directing insolvency proceedings, the court will be guided by the main purpose of its winding-up jurisdiction, namely protecting the best interests of the general body of unsecured creditors.

When the court winds up a company and appoints liquidators, the board of directors becomes functus officio. This should be distinguished from the situation when the court adjourns the winding-up petition and appoints provisional liquidators to facilitate a restructuring (as discussed above). In the latter case, the court may, in appropriate circumstances, reserve powers of management to the existing board for the purpose of implementing a restructuring and give the provisional liquidators ‘light touch’ powers to monitor the board. For example, it is necessary to keep the directors in place when a company is subject to proceedings under Chapter 11 of the US Bankruptcy Code and parallel proceedings in Bermuda, because Chapter 11 requires a debtor-in-possession – meaning the directors.

VI SPECIAL REGIMES

The Companies Act 1981 is applicable to the insolvencies or restructurings of all corporate entities in Bermuda, save to the extent that its provisions are amended by other legislation that applies to specific types of corporate entities, including the Insurance Act 1978 (for licensed insurance companies), the Segregated Accounts Companies Act 2000 (for licensed segregated accounts companies) and, once in force, the Banking (Special Resolution Regime) Act 2016 (for licensed banks).

Under the Insurance Act 1978, a liquidator is required to carry on the long-term business of an insurer with a view to its being transferred as a going concern to another insurer, unless the court orders otherwise.

The Segregated Accounts Companies Act 2000 allows for the appointment of a receiver over the assets and liabilities of an insolvent segregated account; the court will direct the receiver to manage the segregated account for the purposes of the management, sale, rehabilitation, run-off or termination of its business, or distribution of assets.

There are no special insolvency rules relating to corporate groups. To achieve practical efficiency, insolvencies of a group of companies may occur at the same time. Where this occurs, each company within the group is treated separately and is subject to separate legal proceedings. Assets of the companies within the group are not pooled for distribution, unless a scheme of arrangement has been approved or another consensual arrangement between the group and its creditors.

VII CROSS-BORDER ISSUES

The Bermuda court does not have jurisdiction to wind up an overseas company, save for certain statutory exceptions: PricewaterhouseCoopers v. Saad Investments Company Limited [2014] UKPC 35. Accordingly, it is generally not possible to obtain an ancillary winding-up order from the Bermuda court in respect of a company domiciled outside of Bermuda. Thus, ‘forum shopping’ in Bermuda is not possible or relevant. Conversely, if the main insolvency proceedings are in Bermuda, liquidators appointed by the Bermuda court may commence ancillary insolvency proceedings in other jurisdictions that permit ancillary proceedings, such as Hong Kong and England. The Bermuda court is willing to assist foreign courts where it has the common law power to do so. However, that power cannot be used to grant relief to a foreign liquidator in circumstances where the court in the country where the liquidation is taking place could not have granted such relief: Singularis Holdings Limited v. PricewaterhouseCoopers [2014] UKPC 36 (Bermuda court could not order production of information to liquidator appointed in Cayman when no equivalent order could have been made by the Cayman court).

INSOLVENCY METRICS

There is no information publicly available on companies restructuring their debts or defaulting.

During 2019, Bermuda witnessed 23 compulsory winding-up petitions, five of which converted into court orders. The year 2020 was on a similar trajectory, with nine petitions. During 2021, the number of winding-up petitions advertised was consistent with the number of petitions presented the previous year. The year 2022 is on track to maintain this steady pace. Petitions in Bermuda that lead to a winding-up order generally do so in a swift and orderly fashion, with many being processed within one month, which is quicker than any other offshore jurisdiction to our knowledge.

PLENARY INSOLVENCY PROCEEDINGS

TITAN PETROCHEMICALS GROUP LIMITED

Sino Charm International Limited (Sino) petitioned for winding up the respondent, Titan Petrochemicals Group Limited (Titan). The hearing concerned whether an unpaid statutory demand (re: a bond) delivered by Sino to Titan was disputed bona fide and on substantial grounds.

Titan opposed the debt, bringing a counter-claim against Sino in Bermuda and Hong Kong, alleging:

• the funds used to pay for the subscription agreement on the bond were fraudulently obtained from Titan and paid to Sion;
• the bond was issued for an improper purpose and in breach of the officer’s fiduciary duties to entrench certain officers’ position within the company; or
• Titan was entitled to rescind the subscription agreement and did so.

The court noted various cases where a petition would be dismissed if a debt was disputed bona fide on substantial grounds. The court further noted that its approach was akin to, but not the same as, a strike out application. The difference being, the court is not bound to accept every allegation as true, rather, the court may take a real-world view of the factual allegations in evidence. The real-world view was to be undertaken in light of the following:

• whether the company is in fact insolvent;
• whether any of the allegations contained in the affidavit were made prior to the winding-up petition;
• whether any proceedings commenced in relation to the debt are merely retaliatory to the winding-up process; and
• whether the assertions of the company are consistent with objectively verifiable factual evidence.

In this instance:

• the debt was only disputed 30 months after the bond was issued, and three months after service of the statutory demand (one month after petition);
• there was no evidence of the fraudulent transactions or the issuance of the bond being in breach of fiduciary duties as alleged;
• the bond was in fact used for the purposed approval by Titan’s board;
• no allegations of breach of fiduciary duty were made in the parallel Hong Kong proceedings in relation to the debt; and
• Titan was insolvent, noting minimal available funds and serious cash flow issues, resignation of auditors, failure to pay other bills, liabilities grossly exceeding current assets and wholesale disposal of significant assets by the company for nominal consideration to insider family members.

On that basis, the court determined that the debt was not being pursued bona fide and on substantial grounds and dismissed the application seeking dismissal of the petition.

ANCILLARY INSOLVENCY PROCEEDINGS

The Bermuda court does not have jurisdiction to wind up foreign companies and thus, Bermuda is not an ‘ancillary jurisdiction’ in a true sense. There are no reported cases in the past 12 months involving the Bermuda court assisting, or being called upon to assist, foreign liquidators.

TRENDS

The effects of the covid-19 pandemic continue to be reflected in the vast number of companies that are being restructured through the Bermuda court process. The industries that appear to have been most affected are luxury brands, shipping and property. Many solvent businesses are reassessing their operations and structure in light of the new or altered business needs that have arisen in the post-pandemic world and are seeking advice on how best to give effect to changes that they wish to seek, including by way of schemes of arrangement or other solvent restructuring tools. We expect insolvency and restructuring to remain growth areas throughout the next financial year, given the number of organisations that are grappling with these issues.

For further information, please contact:

John Wasty, Partner, Appleby

jwasty@applebyglobal.com

¹ John Wasty is a partner, John Riihiluoma is senior counsel and Lalita Vaswani is counsel at Appleby.

² Certain amounts due to employees have preferential status.

³ The stay of proceedings that occurs when a winding-up order is made does not prevent secured creditors from exercising their rights under validly created security.

⁴ It is uncommon albeit possible for a Bermuda court to appoint a provisional liquidator on a full powers basis who also has the powers to explore the prospects of a restructuring in order to avoid compulsory liquidation.

⁵ Under the Insurance Act 1978, the Bermuda Monetary Authority may commence a winding-up petition against an insurance company where, inter alia: (1) the insurance company is unable to pay its debts as they fall due; (2) the insurer has failed to satisfy any obligation required by the Insurance Act; and (3) the insurer has failed to satisfy the obligations imposed on it under sections 15 and 17 of the Insurance Act (relating to preparing accounts and filing statutory statements, respectively) and that the Authority is unable to ascertain the insurance company’s financial position.