CREDITORS’ SCHEMES OF ARRANGEMENT: ISSUES ARISING IN RE NOBLE GROUP LTD
27th June 2019
In this series of five articles, Michael Todd QC and Andrew Blake look at several of the issues which arose before Snowden J at the convening hearing stage of the Noble Group Ltd creditors’ scheme of arrangement: Re Noble Group Ltd [2018] EWHC 2911 (Ch) and at the sanction hearing stage: Re Noble Group Ltd [2018] EWHC 3092 (Ch).
Noble Group Ltd (Noble) is a company incorporated in Bermuda. Its shares are listed on the main board of the Singapore Exchange. It is the ultimate holding company of a group of companies (Group), which is a major global commodities trader. In recent years, the Group has encountered financial difficulties. Those difficulties were caused, in part, by an industry-wide decline in commodity prices between 2014 and 2016. As a result, Noble defaulted on its main financial obligations.
The scheme of arrangement under Part 26 CA 2006 between Noble and its creditors (Scheme) is part of a broader and highly complicated restructuring of the Group. The substance of the Scheme was that all of Noble’s business and assets would be transferred to two subsidiaries (respectively New Trading Co and New Asset Co) of a newly incorporated holding company, Noble Group Holdings Ltd.
The complexity of the arrangements and the issues arising from them have provided much food for thought.
The scrutiny by the courts, possibly frustrating to some, but no doubt welcomed by others, has made it clear, once again, that whilst there may be a considerable commercial imperative to the success of a scheme, the integrity of the scheme process requires that the court does not act simply as a rubber stamp.
Key issues:
- the impact of consent fees on class composition at the convening hearing (read more);
- the sanction hearing and, in particular, issues of fair representation and the ‘but for’ test in the context of consent fees (read more);
- the implications if companies seek to impose risk participation on creditors as part of a scheme of arrangement (read more);
- the implications of imposing a requirement on creditors to release claims against third parties as part of a scheme of arrangement (read more); and
- questions of jurisdiction and recognition in schemes of arrangement (read more).
These articles first appeared as Case Features in FromCounsel.
