International and Cross-Border Insolvency

With 10 offices strategically located around the world, Davis Polk has developed a presence in each of the leading global business centers – allowing us to provide local knowledge and experience in complex international and cross-border insolvency matters.

Our lawyers have been at the forefront of developing techniques for restructuring international businesses as corporate insolvency laws around the world are modified to favor rescue over liquidation. In recent years, these matters have become increasingly complex as debtors find themselves with significant assets in multiple jurisdictions and the subject of competing proceedings.

 

                

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Davis Polk is pleased to publish Global Distress Signal, a firm newsletter focused on international and cross-border insolvency.

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As a result, we fill a critical role in helping our overseas and domestic clients understand the international legal landscape, including different market conventions, intercreditor concerns and issues relating to obtaining credit and collateral support.

The landmark decision obtained in Elpida is a recent example of our work in this area, as are our major assignments involving Argentina, Lehman, Nortel and OGX. In addition, we regularly represent non-U.S. companies in connection with their distressed U.S. subsidiaries.

The firm has been involved in public and private sector debt restructurings and insolvencies in numerous countries, including:

  • Brazil
  • France
  • Japan
  • Germany
  • Argentina
  • United Kingdom
  • Ireland
  • Honduras
  • Mexico
  • Poland
  • Turkey
  • Venezuela
  • Australia
  • New Zealand
  • various countries in South Asia  

 


We have also been the leading U.S.-based global law firm working, both domestically and internationally, with regulators to solve the “too big to fail” problem and with their financial institutions clients on “living wills” required under the Dodd-Frank Act. These massive bankruptcy and resolution plans require close cooperation between our restructuring lawyers and the lawyers in our Financial Institutions Group, as well as extensive coordination with numerous state, national and international regulators.

Recognition

We continue to receive recognition for many of our international and cross-border representations:

  • Turnaround Atlas Awards – “Global Restructuring Law Firm of the Year,” 2014 
  • Turnaround Atlas Awards – "Cross-Border Distressed M&A Deal of the Year” (Elpida), 2014 
  • American Lawyer Global Legal Awards – “Global Finance Deal of the Year: Restructuring and Insolvency/Asia” (Elpida), 2014 
  •  Financial Times U.S. Innovative Lawyers – “Financial Times US Innovative Lawyers/Highly Commended” (Elpida), 2013
  • International Financial Law Review Americas Awards – “Restructuring Deal of the Year” (Lehman), 2013 
  •  International Financial Law Review Americas Awards – “Restructuring Team of the Year,” 2013

Thought Leadership

Our thought leadership on international and cross-border insolvency includes:

  • Testified before Congress twice over the last year on the bankruptcies of international financial firms
  • Founding director of the International Insolvency Institute, Member of INSOL International and co-chair of the G-36 Committee
  • Member of the official U.S. delegation to the Insolvency Working Group of the United Nations Commission on International Trade Law (UNCITRAL)
  • Member, IBA Cross-Border Insolvency Concordat drafting committee (early 1990s)
  • Managing editor and contributing author of The International Insolvency Review, an annual publication devoted to recent insolvency law developments in 25 countries around the globe
  • Publisher of the Global Distress Signal, a periodic firm newsletter on international and cross-border insolvency
  • Numerous speaking engagements on international and cross-border insolvency topics around the world, including:
    • Latin Lawyer’s Annual Corporate Finance Conference (2014) – “Resolving creditors’ rights disputes in insolvency” panel
    • Netherlands Conference (2014) – presented on the Netherlands’ Companies Act II (Wet continuïteit ondernemingen II) to an audience that included Dutch judges and legislators
    • Israel MOJ Conference (2014) – invited experts on complex cross-border insolvency
    • ABI Cross-Border Insolvency Program (2014) – a unique gathering of speakers from several nations discussing today’s most relevant cross-border cases and topics

Notable Chapter 15 Matters

  • Elpida Memory, a Japanese multinational manufacturer of DRAM integrated circuits and a debtor in a Japanese reorganization case, in its chapter 15 case, obtaining a rarely granted stay of third-party litigation and the first-ever U.S. recognition of a Japanese reorganization plan.

  • Technicolor on its efforts to implement a restructuring plan with financial creditors through a French sauvegarde, a U.S. chapter 15 case and its €1.3 billion debt-to-equity swap through an equity securities offering.

  • Independência S.A. in connection with the restructuring of $165 million in new U.S. dollar-denominated notes and more than $535 million in outstanding indebtedness as part of its emergence from Brazilian recuperação judicial and U.S. chapter 15 bankruptcy proceedings.

  • Castle HoldCo 4, Ltd. (Castle), the parent company of Countrywide plc, a U.K. residential real estate agency, on a restructuring of certain of its debt obligations under schemes of arrangement implemented under English law, Cayman law and chapter 15 of the U.S. Bankruptcy Code.

    • The restructuring, included a debt-for-equity exchange and the issuance by Castle of new debt securities that resulted in a reduction of the total debt of the group by approximately £554 million to £175 million.
  • BNP Paribas regarding claims and discovery demands of creditors in connection with insolvency proceedings of various entities in Spain and Peru, as well as a U.S. chapter 15 bankruptcy proceeding.


Other Notable International and Cross-Border Matters
  • Five U.S. G-SIFIs on the signing of the ISDA Resolution Stay Protocol. We continue to advise the vast majority of the largest SIFIs in preparing their living wills required under the Dodd-Frank Act, including several non-U.S. based banks with significant U.S. operations in Japan, Germany and the United Kingdom. 
  • Citibank in connection with litigation regarding certain Argentine law bonds issued by the Republic of Argentina.
  • The joint administrators and liquidators of Lehman Brothers International (Europe) and its U.K. Lehman affiliates, including in connection with more than $100 billion of asserted claims between such companies and Lehman’s U.S. entities.
    • We successfully negotiated a complex settlement to resolve tens of billions of dollars in claims and tens of thousands of transactions among more than 80 Lehman entities.
    • We also represented the joint administrators of LBIE in connection with the litigation and settlement of $38 billion in claims between LBIE and LBI, Lehman’s U.S. broker-dealer. The highly complicated agreement, which transferred more than $10 billion to the LBIE estate, was one of the largest settlements in history.
  • The creditors of Usina Santa Isabel S.A., a sugar and ethanol agribusiness company, in connection with its restructuring, which involved Brazilian reals-denominated bilateral loans being replaced with a consolidated syndicated pre-export U.S. dollar-denominated financing.
  • Takefuji Corporation, a company in a reorganization proceeding pending in Japan, in connection with its consent solicitation of holders of certain of its notes sold outside of Japan.
  • Tesco plc in connection with the chapter 11 sale of its U.S.-based subsidiary Fresh & Easy Neighborhood Market to an affiliate of The Yucaipa Companies LLC and other entities.
  • The Hon. Warren K. Winkler, Chief Justice of Ontario, in his role as mediator in the global insolvency proceedings of Nortel Networks for disputes among Nortel’s global affiliates, including its U.S., Canadian and EMEA operations.
  • Tianwei New Energy Holdings, a Chinese state-owned enterprise, in connection with the restructuring and eventual bankruptcy of its U.S. affiliate Hoku Corporation.
  • San Antonio, a South American onshore drilling and oil field services provider, in its $600 million debt restructuring involving collateral located in 15 jurisdictions, and planned, in concert with a network of local counsel, various proceedings (both plenary and ancillary) to best protect the company’s business, local assets and enterprise value. The Company restructured its debt out of court.
  • The receivers of Forge Group Power Pty Ltd, a company in liquidation proceedings in Australia, in connection with insolvency-related U.S. litigation.
  • Morgan Stanley as dealer manager and solicitation agent in connection with the $170 million restructuring of senior notes of Transtel Intermedia, a subsidiary of Transtel, a Colombian telecommunications company.
  • Commencing a section 304 (the precursor to chapter 15) proceeding in the Bankruptcy Court for the Southern District of New York on behalf of Telecom Argentina, an Argentine telecommunications company that was being reorganized pursuant to an Argentine acuerdo preventivo extrajudicial (APE), in order to address claims of non-consenting holders of Telecom Argentina’s old debt.