Morrison Foerster’s MoFo Restructuring Round-Up provides our analysis of the statutory, regulatory, legal and business-related developments in the insolvency and restructuring world. Our goal is to provide timely, helpful, insightful and digestible content that will help you keep abreast of the trends that are shaping the industry.<h2>MORRISON FOERSTER’S BUSINESS RESTRUCTURING & INSOLVENCY GROUP</h2>We counsel clients around the globe on corporate distress. We advise debtors, creditors, creditors’ committees, ad hoc committees, secured lenders, and specialist investors and are confident in advising on significant multi-jurisdictional cases. The breadth of our practice allows us to find solutions for a broad range of participants in distressed markets and to help them find their way through their most complex issues. We are creative, pragmatic problem solvers and we know the restructuring world well.<h2>ABOUT MORRISON FOERSTER</h2>Morrison Foerster is a leading global law firm that transforms complexity into advantage for its clients. Our clients include some of the largest financial institutions, banks, consulting and accounting firms, and Fortune 100, technology, and life sciences companies. Highlighting the firm’s commitment to client service, leadership in market-changing deals and impact litigation, and values-based culture, Morrison Foerster has been repeatedly recognized as one of the top 10 firms on The American Lawyer’s A-List. Year after year, the firm receives significant recognition from Chambers and The Legal 500 across their various guides, including Global, USA, Asia‑Pacific, Europe, UK, Latin America, and FinTech Legal. Our lawyers passionately care about delivering legal excellence while living our values. Morrison Foerster has a long-standing commitment to creating a culture that respects and celebrates differences, while providing an inclusive environment. The firm has achieved Mansfield Certification Plus since 2018 as a result of successfully reaching at least 30 percent women, communities of color, and LGBTQ+ lawyer representation in a notable number of current leadership roles and committees. The firm also has a long history of commitment to the community and society through providing pro bono legal services, including litigating for civil rights and civil liberties, improving public education and fostering the wellbeing of children, advocating for veterans, promoting international human rights, enforcing the right to asylum, and safeguarding the environment.

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The Honorable James M. Peck retired from Morrison Foerster upon his appointment as an International Judge of the Singapore International Commercial Court in January 2024. While at Morrison Foerster, Judge Peck chaired Morrison Foerster’s Cross-Border Restructuring practice and also headed the firm’s Mediation practice. Before joining Morrison Foerster, Judge Peck served as a U.S. Bankruptcy Judge for the Southern District of New York from 2006 to 2014, where he presided over the chapter 11 and SIPA cases of Lehman Brothers and its affiliates and a number of other major chapter 11 and chapter 15 cases and wrote multiple legal decisions that have helped define the impact of safe harbors on qualified financial contracts.By invitation, Judge Peck is a fellow of the American College of Bankruptcy and a member of the Panel of Recognized International Market Experts in Finance. He is a past president of the International Insolvency Institute, served on the board of governors of the National Conference of Bankruptcy Judges, and was judicial chair of the American Bankruptcy Institute’s annual New York City Bankruptcy Conference. Former Judge Peck currently chairs the Business Bankruptcy Advisory Committee for the Southern District of New York.Judge Peck co-chaired the ABI’s Advisory Committee on the Safe Harbors. He is a member of the Advisory Committee of the Asian Business Law Institute, is listed as a qualified member of mediation panels maintained by INSOL International, the Singapore Mediation Center, and the Singapore International Mediation Center, and has been included on the Panel of Arbitrators for Financial Services Disputes of the Hong Kong International Arbitration Center and the Panel of Arbitrators of the Singapore International Arbitration Center.Judge Peck has been retained on a number of occasions to furnish expert witness statements for submission to the High Court in London regarding issues of New York law, comity, and the recognition of main and non-main insolvency proceedings. He is also a frequent speaker worldwide on insolvency issues and has participated as a keynote speaker and a panel chair around the globe in conferences presented by numerous international organizations and law schools. These include INSOL International, the International Bar Association, INSOL Europe, and the National Conference of Bankruptcy Judges. He has authored articles published in the American Bankruptcy Institute Journal and International Insolvency & Restructuring Report, and is an editor of a recently published book titled The Art of the Ad Hoc.Before his judicial appointment in the Southern District of New York, Judge Peck was in private practice for over 35 years, concentrating much of that time on bankruptcy law, business reorganization, and creditors’ rights.

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The Honorable James M. Peck is head of Morrison Foerster’s Cross-Border Restructuring practice. Before joining Morrison & Foerster, former Judge Peck served as a United States Bankruptcy Judge for the Southern District of New York from 2006 to 2014. During his judicial service, former Judge Peck presided over the chapter 11 and SIPA cases of Lehman Brothers and its affiliates and a number of other major chapter 11 and chapter 15 cases. As a judge, he has written multiple legal decisions that have helped to define the impact of the safe harbors on qualified financial contracts.

James Peck

Lorenzo is global co-chair of the firm wide Business Restructuring + Insolvency Group. Lorenzo represents debtors, creditors, and creditors’ committees in complex bankruptcy cases, workouts, and litigation. His cases have spanned the United States as well as countless industries, such as airline and cargo transportation, mortgage origination and servicing, retail, banking and finance, energy, oil and gas, and telecommunications.Lorenzo has represented the official committee of unsecured creditors in numerous recent chapter 11 cases, including Peer Street, Incora/Wesco, Clovis Oncology, Valaris, Windstream Holdings, Inc., Cloud Peak Energy, Westmoreland Coal Company, Inc., The NORDAM Group, Inc., Avaya Inc., Armstrong Energy, Inc., 21st Century Oncology Holdings, Inc., Peabody Energy, Inc., Energy Future Holdings, Corp., and UCI International, Inc.Lorenzo’s deep experience and capabilities advising on precedent-setting bankruptcy and restructuring matters have not gone unnoticed. He is listed as a leading lawyer in Chambers USA and has also been recommended by The Legal 500 US. He was also designated by Turnarounds & Workouts magazine as an Outstanding Restructuring Lawyer for his accomplishments in 2016 and 2017.

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Lorenzo is global co-chair of the firmwide Business Restructuring + Insolvency Group. Lorenzo represents debtors, creditors, and creditors’ committees in complex bankruptcy cases, workouts, and litigation. His cases have spanned the United States as well as countless industries, such as airline and cargo transportation, mortgage origination and servicing, retail, banking and finance, energy, oil and gas, and telecommunications.

Lorenzo is global co-chair of the firmwide Business Restructuring & Insolvency Group. Lorenzo represents debtors, creditors, and creditors’ committees in complex bankruptcy cases, workouts, and litigation. His cases have spanned the United States as well as countless industries, such as airline and cargo transportation, mortgage origination and servicing, retail, banking and finance, energy, oil and gas, and telecommunications.

Lorenzo Marinuzzi

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As Russia’s invasion of Ukraine continues, governments around the world are coordinating and responding with increasingly severe sanctions and export controls o

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The Insolvency Practitioner’s Playbook: Making Sense of the UK Sanctions Regime

The Insolvency Practitioner’s Playbook: Making Sense of the UK Sanctions Regime | MoFo Restructuring Round-Up

As Russia’s invasion of Ukraine continues, governments around the world are coordinating and responding with increasingly severe sanctions and export controls on Russian entities, institutions, and individuals. Insolvency practitioners first wonder whether sanctioned entities, or entities connected to sanctioned individuals, can enter into an insolvency procedure and, if so, how does the insolvency practitioner accept an appointment and get paid? Demystifying these grey areas necessitates an overview of the UK sanctions regime and the carve-outs allowing sanctioned entities to continue with financial dealings in distressed circumstances.General Overview of the UK Sanctions RegimeIt is the Sanctions and Anti-Money Laundering Act 2018 (the “Sanctions Act”) that enables regulations for specific sanctions targets to be made, and provides criminal penalties for any breach. Under the Sanctions Act, the Russia (Sanctions) (EU Exit) Regulations 2019 (the “Sanctions Regulations”) were made to enable the Secretary of State to designate persons as subject to restrictions under the Sanctions Act. The Sanctions Regulations were further amended in 2022 in light of the current Ukraine war to widen the ambit of sectors and entities that can become designated under the Sanctions Regulations.The restrictions that can be imposed under these sanctions are wide-ranging, however the most notable for the commercial sector are the financial sanctions. This includes a blanket prohibition for dealing with any funds or assets of a sanctioned entity.Carve-Outs Under the Sanctions RegimeUnder the Sanctions Regulations, the UK Office for Financial Sanctions Implementation (UK OFSI) has the power to grant licences for specific purposes, or general licences, that enable sanctioned entities to continue an activity without breaching the sanction imposed on them. Licence applications are submitted by applicants on a form which is sent to the UK OFSI. The sanctioned entities must identify the legal basis for why they need to continue a financial activity despite the prohibition for dealing. The UK OFSI has granted some licences, most notably for Chelsea Football Club, which has been allowed to continue playing its games but subject to restrictive conditions in contrast to the general perception of free-spending EFL Premier League clubs. In the realm of insolvency proceedings, a general licence was granted for the wind-down of Russian-owned VTB Capital illustrating how to pursue an insolvency proceeding for a sanctioned entity.Entering into Insolvency Proceedings as a Sanctioned EntityGiven the novelty of the situation, there are few precedents to provide a roadmap as to how sanctioned entities are to be dealt with in an insolvency proceeding. English Courts have extensive powers to appoint a ‘receiver’ in cases where it appears ‘just and convenient’ to do so. However, it is unlikely that this is an unlimited right of the Court. The need for a legal basis to ground the general licence carve-out under the Sanctions Regulations supports an argument that a licence is necessary to appoint a receiver.Sanctioned Russian bank Sberbank CIB has gone into <a target="_blank" href="https://www.fca.org.uk/news/news-stories/sberbank-cib-uk-limited-goes-special-administration">special administration</a>, whereas VTB Capital has gone into a regular administration as it was farther down the road towards closing its business. The administration<del>s</del> of these sanctioned banks illustrates that financial sanctions will not in and of themselves stop insolvency processes from going ahead.Please see our comprehensive <a target="_blank" href="https://www.mofo.com/special-content/sanctions/">Sanctions Resource Center</a>, with particular highlights on the firm’s highly regarded National Security team, led by Sanctions expert John Smith, former director of the U.S. Office of Foreign Assets Control, the U.S. sanctions entity, and our <a target="_blank" href="https://www.mofo.com/resources/events/220303-new-russia-sanctions-details-impact.html">webinar</a> on the new Russia sanctions, which further dissects the details.Authored by Howard Phillip Morris. Trainee Solicitor, Sakshi Rai, contributed to the drafting of this alert.

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