Understanding the Legal Issues Behind Executory Contracts in Bankruptcy

Understanding the Legal Issues Behind Executory Contracts in Bankruptcy
Title Understanding the Legal Issues Behind Executory Contracts in Bankruptcy PDF eBook
Author Michael A. Condyles
Publisher
Pages 165
Release 2006-10-01
Genre
ISBN 9781596226012

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Understanding the Issues Behind Executory Contracts in Bankruptcy is an authoritative, insider?s perspective on best practices for bankruptcy and financial restructuring, with a focus on strategies for structuring executory contracts. Featuring partners and chairs from some of the nation?s leading firms, these experts guide the reader through the intricacies of protecting clients from bankruptcy risks and discuss options for companies who are in financial distress. By providing an overview of executory contracts and unexpired leases in Chapter 11 of the Bankruptcy Code, the reader is introduced to a wealth of knowledge these seasoned professionals have to offer. From the assignment of contracts to a third party to the timing and procedures around the assumption or rejection of executory contracts and unexpired leases, these top bankruptcy lawyers discuss overall drafting techniques and strategies for minimizing bankruptcy risks. They carefully outline the similarities and differences between representing both creditors and debtors, as well as those between representing creditor committees and examiners. Additionally, these leaders reveal their strategies for planning defensively, keeping abreast of change, and finding creative solutions in a variable area of law. The different niches represented and the breadth of perspectives presented enable readers to get inside some of the great legal minds of today as these experienced lawyers offer up their thoughts around the keys to success within this ever-evolving field

Executory Contracts in Insolvency Law

Executory Contracts in Insolvency Law
Title Executory Contracts in Insolvency Law PDF eBook
Author Jason Chuah
Publisher Edward Elgar Publishing
Pages 673
Release 2023-01-20
Genre Law
ISBN 1803923423

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Executory Contracts in Insolvency Law offers a unique and wide-ranging transnational study of the treatment of ongoing contracts when one of the parties becomes insolvent. This second edition not only updates existing material, but also extends the analysis to key developing economies and restructuring hubs. Written by experts with extensive practical and scholarly knowledge in the field, this is a cutting-edge investigation into the philosophies and rationales behind the different policy choices adopted by more than 30 jurisdictions across the globe.

Bankruptcy Litigation and Practice

Bankruptcy Litigation and Practice
Title Bankruptcy Litigation and Practice PDF eBook
Author Thomas J. Salerno
Publisher Wolters Kluwer
Pages 2094
Release 2007-09-01
Genre Law
ISBN 0735561931

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Bankruptcy Litigation and Practice: A Practitionerand’s Guide, Fourth Edition serves as the comprehensive reference on bankruptcy litigation topics for legal practitioners in all specialties. For the generalist and commercial law practitioner it clarifies basic Bankruptcy Code issues and practical features of bankruptcy litigation including consumer bankruptcies, business and corporate reorganizations, liquidations and personal debt restructuring. For the bankruptcy professional, it serves as a sophisticated compendium of reliable forms, recent case law, and statutory amendments relating to all major bankruptcy topics including: Automatic stay Preferences Dischargeability Executory contracts The Chapter 11 confirmation process Appellate procedures Chapter 13 individual debt restructurings The rights and obligations of secured and unsecured creditors And much more! Only Bankruptcy Litigation and Practice: A Practitionerand’s Guide delivers instant access to: An exclusive collection of key bankruptcy litigation resource materials Practical insights into the bankruptcy court system A consolidated presentation and analysis of bankruptcy provisions common to all cases Reliable, practice-based coverage of Chapter 7, 11, 12, and 13 cases Bankruptcy Litigation and Practice: A Practitionerand’s Guide delivers broad coverage that keeps you completely current with the latest law in all key areas. Updated twice annually, this one-of-a-kind reference serves as the foundation of your bankruptcy library by providing: The starting point for researching the widest range of bankruptcy litigation issues A guide throughout all stages of bankruptcy litigation A consolidated resource and practical tool that combines case law and analysis as well as a valuable CD-ROM to help you navigate familiar and unfamiliar areas of bankruptcy litigation

Arbitration Agreements as Executory Contracts in Bankruptcy After Mission Products Holdings, Inc. V. Tempnology

Arbitration Agreements as Executory Contracts in Bankruptcy After Mission Products Holdings, Inc. V. Tempnology
Title Arbitration Agreements as Executory Contracts in Bankruptcy After Mission Products Holdings, Inc. V. Tempnology PDF eBook
Author Stephen J. Ware
Publisher
Pages 0
Release 2022
Genre
ISBN

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In 2021, a bankruptcy court refused to enforce an arbitration agreement because, among other reasons, the debtor rejected the contract containing the arbitration agreement under Bankruptcy Code § 365. In concluding that rejection meant the debtor was “no longer bound by the [contract]'s provisions that impose specific performance obligations on it--provisions such as the Arbitration Clause,” the bankruptcy court rightly found “support in” a 2014 federal district court decision refusing to enforce an arbitration agreement against a receiver who had rejected that agreement under receivership law similar to § 365. These two decisions conflict with a long line of cases enforcing executory arbitration agreements notwithstanding rejection under § 365. Moreover, the Supreme Court's Mission Prod. Holdings, Inc. v. Tempnology decision supports this long line of cases, as another bankruptcy court recognized by citing Tempnology in holding that “the bankruptcy code does not render arbitration clauses in rejected executory contracts inoperative.” Bankruptcy Code § 365 gives the trustee or debtor-in-possession representing a bankruptcy estate the power to choose whether the estate will assume or reject many of the executory contracts formed by the pre-bankruptcy debtor. Section 365 instructs courts to treat the estate's rejection of an executory contract as though the pre-petition debtor had breached that contract. This treatment typically means that the non-debtor party to the rejected contract will collect no money from the estate or merely a small portion of the money damages a non-bankruptcy court would have awarded for the debtor's breach of contract had the debtor stayed out of bankruptcy. In this sense, rejection of an executory contract typically weakens enforcement of that contract by the non-debtor party seeking money damages. In contrast, the rejection of an executory arbitration agreement formed by the pre-bankruptcy debtor does not--except in the two outlier cases noted above--weaken the non-debtor party's enforcement of that arbitration agreement. Notwithstanding rejection under § 365, nearly all courts enforce executory arbitration agreements against the estate with the remedy of specific performance that compels the estate to arbitrate. However, § 365 cases have been uneven in their handling of arbitration law's separability doctrine, which holds that “arbitration clauses as a matter of federal law are 'separable' from the contracts in which they are embedded.” The separability doctrine may, at least initially, seem to conflict with § 365 cases stating that an executory contract must be assumed or rejected in its entirety under the “all-or-nothing rule.” Difficulties combining the separability doctrine with § 365 have produced erroneous statements by several courts, including the Third Circuit's oft-cited decision in Hays and Company v. Merrill Lynch, Pierce, Fenner, & Smith, Inc. This Article has two main parts. Part I begins with § 365 and the consequences of assumption and rejection, before exploring the implications of the United States Supreme Court's statement in Mission Prod. Holdings, Inc. v. Tempnology, that “[a] rejection breaches a contract but does not rescind it. And that means all the rights that would ordinarily survive a contract breach . . . remain in place” after rejection. Consistent with this statement and its likely implications, Part I shows, many courts before, and one after, Tempnology have specifically enforced arbitration agreements against the estate, notwithstanding rejection of those arbitration agreements. Part I argues that these many cases are right rather than the two outlier cases identified at the start of this Article.Part II of this Article explains arbitration law's separability doctrine and integrates it with bankruptcy law. This analysis shows, contrary to the outlier cases and some commentators, that the separability doctrine is compatible with, and even further supports, courts' conclusions that rejection under § 365 does not prevent specific enforcement of an arbitration agreement. The Article concludes that a pre-bankruptcy debtor's arbitration agreement is specifically enforceable by or against the estate, regardless of whether the rest of the contract containing the arbitration agreement is executory. And either party is entitled to specific performance of the arbitration agreement regardless of whether the estate has rejected it and the broader contract containing it or rejected only the arbitration agreement while assuming the broader contract containing it.

Problems and Materials on Debtor and Creditor Law

Problems and Materials on Debtor and Creditor Law
Title Problems and Materials on Debtor and Creditor Law PDF eBook
Author Douglas J. Whaley
Publisher Aspen Publishing
Pages 567
Release 2021-12-17
Genre Law
ISBN 1543820611

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This straightforward, student-friendly book combines a popular problems approach with a well-balanced mix of text and cases to build a solid, nuts-and-bolts introduction to the Bankruptcy Code, statutory rules, and issues of bankruptcy law. Its sensible organization allows instructors to tailor coverage to their own approach. The seventh edition benefits from the addition of a new coauthor, Professor Bradley, of the University of Kentucky. New to the Seventh Edition: For this edition, the text has been completely rewritten, primarily by Professor Bradley, and the focus is now heavily on preparing attorneys for the real world problems they will encounter in a practice that focuses on bankruptcy and other debtor/creditor issues. There is a new chapter covering the new subchapter V of Chapter 11, which was introduced by the Small Business Reorganizations Act and which has proven very popular since it came into force in March of 2020. The book also features an extended treatment of 363 Sales, better reflecting modern practice realities as compared with how other books deal with this topic. Professors and student will benefit from: This edition has a more textual approach in explaining the difficulties of the law, adding many explanations of how to approach and handle the legal difficulties in this area as they arise. This edition features many straightforward diagrams to help students with different learning styles navigate the sometimes challenging concepts of bankruptcy law. The first chapter of this edition includes a simple but thorough summary of bankruptcy law, which makes it easier for students to place all the future chapters into context.

Bankruptcy Law in Context

Bankruptcy Law in Context
Title Bankruptcy Law in Context PDF eBook
Author Theresa J. Pulley Radwan
Publisher Aspen Publishing
Pages 685
Release 2020-02-02
Genre Law
ISBN 1543817084

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Bankruptcy Law in Context provides a fresh approach to the study of bankruptcy law through the illustration of bankruptcy issues in typical required doctrinal courses. Students learn the bankruptcy concepts by studying them in the context of materials they already mastered as part of their required law school curriculum. In addition, this title allows for a bankruptcy course to be taught as a capstone, providing a good summary and review of these foundational topics in the context of a body of law that frequently intersects with other areas of law. Key Features: An overview of fundamental doctrinal courses Problems at end of each chapter that build upon each other throughout the book Treatment of fundamental bankruptcy concepts within the context of other areas of law Professors and students will benefit from: A unique approach, that focuses not just on the bankruptcy code but on its interaction with other areas of the law. This appeals not only to students interested in bankruptcy practice, but also to students seeking a way to connect the law school curriculum or to review previously learned areas of law in preparation for the bar examination and practice A review of core doctrinal concepts An understanding of basic bankruptcy concepts Discussion of statutory interpretations throughout book Concluding problems to each chapter that bring together concepts

Business Bankruptcy Law in Focus

Business Bankruptcy Law in Focus
Title Business Bankruptcy Law in Focus PDF eBook
Author Daniel A. Austin
Publisher Aspen Publishing
Pages 851
Release 2016-09-20
Genre Law
ISBN 1454876115

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As part of the In Focus Casebook Series, Business Bankruptcy Law In Focus, offers a comprehensive, practice-oriented approach to the legal and practical aspects of business bankruptcy. By providing real world scenarios throughout, the text gives students numerous opportunities to apply what they are learning, and solidify their understanding of important concepts. Clear explanatory text, case previews and case follow ups further clarify the doctrine and aid in student understanding of concepts. With its focus on business bankruptcy, this text begins by reviewing the basics of business entities and debt along with essential business bankruptcy concepts, then moves onto covering powers of debtor in possession, drafting and confirming a plan of reorganization, evolving forms of business bankruptcy (e.g. liquidation of assets, prepackaged and pre-negotiated, structured dismissals, etc.). It then introduces cross-border insolvencies under Chapter 15 of the Code, bankruptcy jurisdiction, including core and noncore proceedings following the Supreme Court decision in Stern v. Marshall. Features: Fresh approach that uses selected cases to illustrate key developments in the law and to show how courts develop and apply doctrine Approachable manner and assessment features provide an experiential environment for students Hands-on approach encourages students to apply concepts to real-world scenarios, offer many opportunities for students to apply their knowledge Assessment features include: Real Life Applications Applying the Concepts Case Previews and Post Case Follow Ups The purchase of this Kindle edition does not entitle you to receive 1-year FREE digital access to the corresponding Examples & Explanations in your course area. In order to receive access to the hypothetical questions complemented by detailed explanations found in the Examples & Explanations, you will need to purchase a new print casebook.