As part of its ongoing efforts to assist business during the COVID-19 pandemic, Her Majesty’s Government of Gibraltar (“HMGOG”) have published a Bill to amend certain provisions of the Insolvency Act 2011. The Insolvency (Amendment) Bill 2020 (the “Bill”) seeks to introduce, among other measures discussed below, a temporary moratorium period during which the ability of hostile creditors to place companies (and any other form of legal entity, sole trader or partnership) into Administration or Liquidation are suspended. It also introduces measures to protect directors (and their equivalents in other forms of legal entities), and the decision they make during the COVID-19 pandemic, to alleviate concerns regarding insolvent trading and other statutory remedies for which personal liability may arise.
Who do the measures apply to?
The amendments introduced by the Bill apply to virtually all forms of corporate and non-corporate entities. These include companies, partnerships and sole traders who are licensed or authorised in Gibraltar under the Fair Trading Act or other act (such as the Financial Services Act 2019). [1]
What are the aims of the new measures?
The new measures, which are due to be implemented in the near future, will introduce a moratorium period which will commence and end by a legal notice published by HMGoG. It is expected that the period will commence simultaneously with the introduction of the amendment and will likely last until such time as some sort of economic normality is restored, although no set termination date is set.
Broadly, the new measures contained in the Bill can be grouped into either i) measures designed to prevent the company from entering an insolvency process during the moratorium period and ii) measures designed to protect directors (and equivalents) from personal liability for decisions taken during the moratorium period.
The new measures contained in the Bill form part of a wider package of measures introduced by HMGoG during the COVID-19 pandemic and, ultimately, recognise the unprecedented economic challenges which the wider COVID-19 measures will have on business (which form the basis of ‘Relevant Circumstances’ as defined in the Bill). The measures are therefore designed to allow otherwise healthy businesses to continue in the current economic circumstances where insolvency legislation (and hostile creditors) may otherwise ordinarily require them to enter into an insolvency process.
What are the new measures?
The above provisions have been extended, with such necessary modifications to bankruptcy, unregistered companies as well to the Other Relevant Entities.
Conclusions
The measures proposed by the Bill are certainly bold and appear to strike a balance between shielding companies and directors from actions by liquidators and creditors at the expense of creditors’ ability to recover debts due on the one part and allowing otherwise healthy companies and entities to survive the economic challenges of the COVID-19 pandemic by providing them with a means to ‘trade out’ of economic difficulty on the other part. The measures also protect and relieve directors (and their equivalents) of certain duties and allow them to act in ways which, provided they remain in the best interest of the company, could ordinarily expose them to liability and/or would cause a company to enter into an insolvency process. Whilst it is recognised that these measures appear to favour a company over its creditors they must be seen within the wider context of the COVID-19 pandemic and, particularly, i) the reality of the present economic circumstances, ii) the overall restrictions imposed by HMGG on the ability of businesses to trade and iii) recognition that creditors overall may benefit in the long term from these measures by allowing business to survive rather than entering into an insolvency process from which creditors may not recover a significant (or any) part of their debt. Of course, it is also noteworthy that creditors (at least those in Gibraltar) whose own solvency positions may be adversely affected due to their inability to realise any security interests or assets from their debtors are themselves protected by these same measures. Overall these measures must be viewed within the context of their ultimate goal this being that they seek to facilitate the return of economic normality once the pandemic is over; they should therefore be welcomed for their intended long-term effects.
Practically, and notwithstanding these measures, directors (and their equivalents) would still be best advised to record, either in board minutes or otherwise, the reasons for the decisions they are taking especially where they would seek to later rely on the measures contained in the Bill. Some measures limit themselves to introducing rebuttable presumptions and therefore contemporary records of the rationale and circumstances behind such decisions can only serve to protect companies and their directors should the need ever arise.
Authors Bio
James Montado is a Partner of ISOLAS LLP with a substantial insolvency practice especially within the context of regulated entities. He has advised and acted for liquidators, administrators, creditors, secured creditors and foreign insolvency funds.
If you would like any further information on the measures discussed in this article or on general advice Please contact James Montado on james.montado@isolas.gi
The Insolvency (Amendment) Act 2020 commenced on the 1st June 2020 with the moratorium period being from 16th March 2020 to 31st December 2020
[1] The Bill defines ‘company’ “as a company to which the Insolvency Act applies and which is licensed or authorised in Gibraltar under the Fair Trading Act or any other enactment of Gibraltar law” and introduces the definition of ‘Other Related Entity’ which itself is defined as “any form of legal entity, partnership or sole trader other than a company or unregistered company established under any enactment of Gibraltar law to which the Insolvency Act applies by virtue of the enactment of establishment or other law, and which is licensed or authorised in Gibraltar under the Fair Trading Act or any other enactment of Gibraltar”
[2] Defined in r.3 of the Insolvency Rules 2014 and includes, inter alia, a director, parent or subsidiary company, any entity that has control of the company, a spouse or civil partner of such individual and/or a relative of such and individual or their spouse/ civil partner.
[3] Defined in the Bill as suspension, restriction, continuation or conduct of trade during the moratorium period in connection with the COVID-19 pandemic, in the context of and notwithstanding market conditions or circumstances prevailing or despite conduct and/or degree of compliance with commitments and obligations by clients and other contractual counterparties.