RISA Q3 2019 Technical Session David Livshiz – Freshfields Nick Herrod – Maples Group Michael Pearson – FFP John A Pintarelli – Morrison & Foerster 19 September 2019 Recovery & Insolvency Specialists’ Association
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 Huge success and congratulations to Zoe Nolan of 1. Walkers for completing the scholarship In discussions with South Square to consider the same 2. 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 John A.Pintarelli Nick Herrod Morrison Foerster LLP Maples Group Partner, New York Of Counsel, Cayman Islands +1 212 336 4133 +1 345 814 5654 jpintarelli@mofo.com nick.herrod@maples.com David Livshiz Michael Pearson FFP Freshfields Bruckhaus Director, Cayman Islands Deringer +1 345 640 5860 Counsel, New York +1 212 277 4000 michael.pearson@ffp.ky david.livshiz@freshfields.com
Madoff – two competing estates US Debtor Cayman Debtor $ BLIMIS Feeder Fund Clawback US Liquidation Cayman Liquidation US law Proceedings Proceedings Clawback $ The Cayman law bypass $ Clawback Subsequent US law Transferee
Contrast with parallel proceedings Cayman Debtor $ $ $ Cayman Provisional $ US Chapter 11 US Chapter 15 Liquidation $ Clawback Cayman $ Clawback US law law $ Transferee Clawback Cayman law
Cross-border insolvency – recognition and assistance US Cayman Ascot • Modified • Part XVII • Cayman model law – Companies Fund/Cayman chapter 15 Law liquidation • CoMI analysis • Common law • Legitimate expectation • Place of Cayman law incorporation
Madoff - US Court of Appeals Extraterritorial What about application comity? No parallel proceedings As long as a U.S. debtor Feeder investors knew makes initial transfer where the money was really going Efficiency Money can be followed anywhere in the world Conflict with foreign through any number of liquidation not compelling subsequent transferees – US clawback laws more but practical limitations equitable
Disjointed in the US? NY US Court of Bankruptcy Appeals Court
Are US clawback laws more equitable? US Cayman Received more than Intent to other creditors/less defraud/dominant than equivalent intention to value/defraud or prefer/knowledge delay Equal Equal distribution/investor distribution/market certainty certainty Is NAV always NAV?
Impact of Madoff • What discretion does it give a court? • Properly applied? Comity • Race to the court? IP • Master feeder officeholder cooperation? perspective • Can Cayman officeholders expect a warm reception? US court • How easy will it really be for the trustee to recover? Investors
Legitimate expectation of investors CoMI What should the Economic Place of legitimate reality incorporation expectation depend on? Legal personality
What comes next? Supreme Court What factors will needs to take the influence the Timetable case Supreme Court?
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