CREDITOR REPOSSESSION ON DEFAULT AND INSOLVENCY CURRENT POSITION IN SINGAPORE AND HOW IT MAY CHANGE UNDER THE

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1 CREDITOR REPOSSESSION ON DEFAULT AND INSOLVENCY CURRENT POSITION IN SINGAPORE AND HOW IT MAY CHANGE UNDER THE LUXEMBOURG PROTOCOL Date 13 January 2016 Presentation by Sim Kwan Kiat Designation Lawyer Partner Contact details Current position under Singapore law - Under contract - Under insolvency regime 2 1

2 Under contract (a) security agreement conferring security (charge) - right to appoint a receiver (b) retention of title - right of seller / vendor to repossess 3 Insert Title Under insolvency regime (a) liquidation (b) judicial management (c) rights of secured creditors / seller with title (d) stay of enforcement but practically and usually, rights of secured creditors and title holders are not substantively affected 4 2

3 Remedies on insolvency Article IX Luxembourg Protocol Alternatives A, B and C Alternative A (a) Upon occurrence of insolvency related event - insolvency administrator / debtor shall give possession of stock to the creditor by a deadline. (b) Until creditor given opportunity to repossess, duty by insolvency administrator / debtor to preserve stock; creditor can apply for interim relief. (c) 5 Insolvency administrator / debtor may retain possession of stock if by deadline it has cured all curable defaults and agreed to perform all future obligations. Alternative B (a) Upon occurrence of insolvency related event - insolvency administrator / debtor, upon creditor s request, shall notify creditor within deadline whether it will cure all curable defaults and agree to perform all future obligations, or give creditor opportunity to repossess. (b) If insolvency administrator / debtor fails to give notice, or failed to give possession despite declaring it will do so, the court may permit creditor to take possession upon terms. 6 3

4 Alternative C (a) Upon occurrence of insolvency related event - insolvency administrator / debtor shall within cure period, cure all curable defaults and agree to perform all future obligations, or give creditor opportunity to repossess stock. (b) Insolvency administrator / debtor may apply to court for suspension period provided that sums accruing to creditor during period are paid from estate; stock and value are maintained. 7 Declaration by Singapore for Aircraft Protocol International Interests in Aircraft Equipment Act (Cap. 144B) enacted in 2009 (a) Applies where- (i) Singapore debtor, (ii) international interest registered, (iii) not excluded by contract. (b) Where insolvency proceedings commenced against debtor, and aircraft in Singapore, insolvency administrator / debtor shall, within 30 days (or earlier), give opportunity to creditor to repossess. (c) Insolvency administrator / debtor may retain possession if, within 30 days, all curable defaults cured and agreement to perform all future obligations. 8 4

5 (d) Where the insolvency administrator of the debtor or the debtor fails to perform all future obligations, the creditor may immediately repossess. (e) Unless and until the creditor is given the opportunity by the insolvency administrator / debtor to repossess duty to preserve and maintain (indemnified by creditor for reasonable costs); creditor entitled to apply for any interim relief. 9 Singapore approach? - May adopt similar approach to Aircraft Protocol - Concerns on delay in creditors enforcement rights - But Alternative C (absent in Aircraft Protocol) may offer compromise, with courts retaining control 10 5

6 11 6

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