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Questions and Answers
What is required to initiate the scheme process for an insolvent company under the IRDA?
What is the initial duration of the automatic interim moratorium provided by section 64 of the IRDA?
Under what condition can the court sanction a proposed scheme after creditor meetings?
What must be included in the affidavit supporting the application to the Court for leave to convene a meeting?
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What does the automatic interim moratorium prevent during its duration?
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What is the primary role of the court when considering an application for leave to convene a meeting?
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Which section of the Companies Act specifies the requirements for creditor meetings when proposing a scheme?
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What is a prerequisite for the interim moratorium to be effective?
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What is required for a court to grant leave to convene a creditors' meeting?
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Which statement best describes the requirements for the explanatory statement sent to creditors?
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Under the dissimilarity principle, when should creditors be divided into separate classes?
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What is the statutory majority needed for voting on a proposed scheme?
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What conditions must be met for a court to cram down dissenting classes of creditors?
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When can the court approve a scheme without convening a meeting of creditors?
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What must the court satisfy itself of before approving a scheme?
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Which class of creditors is considered to have the highest priority during the liquidation process?
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What is a necessary condition for the approval of a scheme by the court?
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Which of the following was a reason the court refused to sanction the scheme in Wah Yuen Electrical Engineering Pte Ltd v Singapore Cable Manufacturers Pte Ltd?
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What effect does the court order have on dissenting creditors once a scheme is approved?
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How can a scheme potentially affect third parties?
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What types of termination events are typically outlined in a scheme document?
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In the context of scheme approval, which statement is true regarding a reasonable businessperson's perspective?
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What is a common requirement for creditors to be considered representative in a meeting regarding scheme approval?
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What does the court's refusal to sanction a scheme due to lack of transparency typically reflect on the involved companies?
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Study Notes
Schemes of Arrangement
- Relevant Legislation: Sections 63 to 72 of the Insolvency, Restructuring and Dissolution Act (IRDA) and Sections 210 and 211 of the Companies Act.
- Focus: Schemes for creditors of insolvent companies.
- Who Can Commence the Scheme Process: Any corporation liable to be wound up under the IRDA (including companies with a substantial connection with Singapore)
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Interim Moratorium:
- Automatic Interim Moratorium: Arises upon application, providing an initial 30-day moratorium, extendable by court order.
- Requirements: Evidence of creditor support for the scheme, and if a scheme isn't fully developed, a brief description of the proposed scheme with sufficient particulars.
- Scope: Restricts acts outside Singapore and actions by creditors (except for prescribed set-off or netting arrangements).
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Key Steps before a Scheme Becomes Binding:
- Application to Court: Request to convene one or more meetings of creditors.
- Creditors' Meeting: The proposed scheme is presented for approval, requiring a majority vote by number and value (¾) present and voting.
- Court Sanction: The court may sanction the scheme if it has the requisite majority approval.
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Application to Court for Leave to Convene a Meeting:
- Method: Ex-parte originating summons under Order 38 Rule 2(1) of the Rules of Court.
- Support: Affidavit from a duly authorized person in the company.
- Court's Role: To decide whether a meeting should be called and its format, not to evaluate the merits of the scheme.
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Considerations for Granting Leave to Convene:
- Realistic Prospect of Approval: The court should avoid granting leave if there's no realistic chance of the scheme getting the necessary approval.
- Disclosure and Transparency: The company must disclose material information to the court to facilitate a properly considered determination on how the meeting will be conducted.
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After Leave is Granted:
- Notice and Explanatory Statement: Notice of the meeting and an explanatory statement must be sent to creditors, clearly explaining the scheme and the material interests of directors/shareholders. The statement should contain enough information to assist creditors in voting.
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Classification of Creditors:
- Dissimilarity Principle: Creditors must be divided into different classes if their rights are so different that they cannot meaningfully collaborate to protect their interests.
- Possible Classes: This could include secured creditors, unsecured creditors, and those with priority or preferential claims.
- Voting on Proposed Scheme: Requires a majority in number representing ¾ in value of creditors present and voting (either in person or by proxy).
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Cramming Down Dissenting Classes of Creditors:
- Court's Power: The court can approve a scheme even if some creditor classes oppose it.
- Requirements: An approving class, majority approval from creditors meant to be bound, no unfair discrimination between classes, and a scheme deemed fair and equitable for each dissenting class.
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Approval of Scheme Without a Meeting:
- Court's Power: The court may approve a scheme without holding a meeting of creditors if it's deemed that conditions for approval would have been satisfied if a meeting had been conducted.
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Court Approval of the Scheme:
- Court's Satisfaction: The court must be satisfied that statutory provisions have been followed, representatives of the creditor class were present, and the scheme is reasonable for the class.
- Transparency and Disclosure: The court will scrutinize the information provided to ensure transparency and fairness, considering previous cases like Wah Yuen Electrical Engineering Pte Ltd v Singapore Cable Manufacturers Pte Ltd.
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Effect of Court Order:
- Binding Effect: All parties to the scheme are bound, including dissenting creditors.
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Effect of Scheme on Third Parties:
- Third-Party Rights: The scheme can have implications for third-party rights and obligations, as seen in cases like Daewoo Singapore Pte Ltd v CEL Tractors Pte Ltd and Pathfinder Strategic Credit LP v Empire Credit Resources Pte Ltd.
- Termination of a Scheme: The scheme document will outline termination events such as a specified duration, the occurrence of certain conditions, final payments to creditors, or a vote by creditors/scheme manager.
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Description
This quiz explores the key aspects of Schemes of Arrangement under the Insolvency, Restructuring and Dissolution Act and the Companies Act. It covers the relevant legislation, the commencement of the scheme process, and the necessary steps before a scheme becomes binding. Test your knowledge on creditor arrangements and interim moratoriums in the context of insolvent companies.