Advised a creditor in the cross-border restructuring of Mauritanian flag carrier Air Mauritius
|Global heads of restructuring and insolvency:||Mark Holligon, John Wasty|
|Partners in restructuring team:||21|
|Restructuring lawyers in Who’s Who Legal:||4|
|Active cross-border restructuring and insolvency matters:||108|
History of the practice
Appleby can trace its roots back to the 19th century when Major Reginald Appleby commenced practice in Bermuda in the late 1890s. The firm, which recently celebrated 125 years in business, has grown substantially since the early days and has been through a series of mergers – most recently in 2006 when Appleby Spurling Hunter merged with Bailhache Labesse to form what is known as Appleby today.
After legacy firms started work in the Cayman Islands and Jersey in the mid-20th century, Appleby has expanded to other major offshore jurisdictions in the past 30 years, opening an office in Hong Kong in 1990, the British Virgin Islands in 2004, Mauritius in 2007 and Seychelles and the Isle of Man in 2009. It expanded again, to Guernsey the following year, and most recently set up shop in Shanghai in 2012.
The current names to know include its global restructuring co-heads, Mark Holligon in the Isle of Man and John Wasty in Bermuda. Andrew Willins leads the restructuring team in the British Virgin Islands (BVI), while Tony Heaver-Wren heads the Cayman restructuring team and partner David Bulley relocated to Hong Kong in May 2020 to lead the restructuring team there.
Alongside Bermuda, Cayman, the BVI and the Isle of Man, the firm has restructuring lawyers in Jersey, Guernsey, Hong Kong, Mauritius and Shanghai.
Who uses it?
A favourite of banking groups, funds and investors in restructuring and insolvency proceedings, Appleby has worked on behalf of Iceland’s Kaupthing, Bear Stearns, Barings Bank, the SPhinX Group and Bermudian telecoms company Global Crossing.
The firm also regularly acts for insolvency office holders and advisory firms – including all the Big Four firms, as well as Duff & Phelps, FRP Advisory and Grant Thornton.
Historic track record
Appleby represented Bermuda-registered transport and container leasing company Sea Containers in a cross-border restructuring in 2006 that included a Chapter 11 proceeding alongside, for the first time, a “light touch” provisional liquidation in Bermuda – a concept that has since been adopted by other jurisdictions including the Cayman Islands, the British Virgin Islands and Hong Kong.
In another first, Guernsey partner Anthony Williams represented HSBC and HSBC Private Bank in a case that saw the Royal Court of Guernsey sanction a scheme of arrangement to transfer a business between two entities to comply with the UK’s ring-fencing regulations for the first time in August 2017.
Appleby also acted for helicopter group CHC in a global restructuring sanctioned by a Texas bankruptcy court in March 2017 that included a Cayman provisional liquidation process. A month before sanction order, the firm persuaded a friendly creditor and group affiliate to file a winding-up petition against CHC so its directors could circumvent the Emmadart principle and appoint provisional liquidators over the group’s parent without shareholder authorisation.
Another court success for Appleby in 2017 saw the UK Privy Council recognise – for the first time – the possibility of making clawback claims under the 2007 Companies Acts where a redemption payment was illegal. Partner Peter McMaster KC acted for the liquidators of DD Growth Premium 2X Fund in the proceedings, managing to overturn previous rulings of the Cayman courts by arguing that payments made to an investor amounted to an illegal return of capital, which failed the solvency test under the law.
Wasty also advised the lenders’ coordinating committee of Norwegian oil group Seadrill, which won approval of its second Chapter 11 plan in the US Bankruptcy Court for the Southern District of Texas in April 2018 after a “near unanimous” creditors’ vote in support. The US$10 billion plan was recognised in Bermuda, where the Seadrill companies are registered. Appleby’s client had a US$7.4 billion stake in the deal.
In the same year, US-Luxembourg drill ship contractor Pacific Drilling hired Appleby as offshore counsel for a US$1.85 billion debt-for-equity swap through Chapter 11 proceedings in New York. The restructuring left customers, employees and ordinary trade claims holders unimpaired. The company had drill ships flying BVI and Luxembourg flags, requiring advice in both jurisdictions.
The firm also acted as offshore adviser for the ad hoc committee of bondholders and senior lenders in Asian commodity trader Noble Group’s controversial US$3.5 billion restructuring, which saw the group carrying out a centre of main interests shift from Hong Kong to England and parallel schemes in the UK and Bermuda to emerge as a new company – minus its Singapore listing – in late December 2018.
As well as welcoming 11 new associates and senior associates across all the firm’s offices in 2021, Appleby promoted Lalita Vaswani in Bermuda to counsel in April of that year.
Top cases of the research period
Appleby partners Yahia Nazroo and Dushyant Ramdhur in Mauritius advised Chinese airline China Eastern Airlines as a creditor of bankrupt Mauritanian flag carrier Air Mauritius. The flag carrier entered voluntary administration proceedings in Mauritius in April 2020 and secured recognition in England two months later, as it struggled to repay more than US$216 million of debt thanks to pandemic-era travel restrictions. Air Mauritius completed its restructuring in January 2022 via a deed of company arrangement, with the government of Mauritius advancing a loan to satisfy creditor claims as stipulated under the deed.
In Bermuda, Wasty is representing investment bank Credit Suisse in the ongoing liquidation proceedings of Chinese coal group Up Energy Development. Credit Suisse filed a winding up petition against the group in Bermuda in October 2017 following the company’s default on convertible notes worth US$19 million (HK$150 million); another creditor, Hong Kong brokerage firm HEC Securities, had already filed its own winding-up petition in Hong Kong the previous year. Despite an initial adjournment in Hong Kong for the benefit of the Bermuda proceedings, the Hong Kong High Court issued a winding-up order against Up Energy in May 2022, finding no reason why liquidators in both jurisdictions could not harmonise the processes. The first meeting of creditors and contributories is set to be held in 2023.
A team of the firm’s partners in Guernsey, Jersey and the Isle of Man advised Teneo as the UK joint administrators of defunct fashion retail conglomerate Arcadia Group, seeking recognition orders from those jurisdictions. Arcadia Group collapsed into administration in late 2020, blaming the covid-19 pandemic for straining its already troubled finances. Appleby also secured moratoria in all three jurisdictions to secure the group’s assets while the joint liquidators explored asset sales.
On the debtor side, infrastructure development firm China Resources and Transport recruited Heaver-Wren in the Cayman Islands and partner Eliot Simpson in Hong Kong to help it defeat winding-up and provisional liquidation applications in the Cayman Islands in May 2021. China Resources had struggled under a sizeable debt pile for several years but enjoyed the support of most of its creditors. The petitioner, Mighty China International, a creditor holding HK$400 million (US$51 million) in promissory notes due in April 2024, sought a winding-up order over the perceived risk of dissipation of assets under the current management. After the provisional liquidation application was defeated, Mighty China withdrew its winding-up petition.
Finally, Wasty is advising Bermuda-based life insurance company SA Reinsurance, an insurer sponsored by Japan’s Sony Life Insurance, in a voluntary winding-up proceeding in Bermuda. The firm is providing counsel on all aspects of the company’s winding up, from insurance deregistration to acting as liquidator of the business.
Faegre Drinker Biddle & Reath partner Susan Moore in London, who is acting alongside Appleby in the long-running liquidation of luxury hotel owner Peak Hotels, says, “Andrew Willins is one of the ‘go to’ individuals in the BVI for contentious restructuring and insolvency mandates: he is technically excellent as well as being commercial and pragmatic, and a pleasure to work alongside.”
“He also conducts his own advocacy including in complex matters before senior courts – to great effect,” she adds.
“Appleby have demonstrated that they can handle instructions consistently and respond promptly, with a comprehensive team approach,” says Begbies Traynor Group partner Adrian Hyde in Inverness, who has received counsel from the firm in his capacity as a UK trustee. He lauded Holligon for his leadership and praised “top quality” associate Emily Ashe in the Isle of Man.
Appleby provides offshore legal advice in the key international jurisdictions of Bermuda, BVI, Cayman, Guernsey, the Isle of Man, Jersey, Mauritius, the Seychelles, Hong Kong and Shanghai. It is one of the largest offshore firms, having been established in Bermuda in the late 1890s by former British Army officer Major Reginald Appleby.
Cross-border insolvency & restructuring
Appleby’s insolvency & restructuring team combines a wide range of sector-specific expertise across each of the jurisdictions in which we operate. This enables us to provide clear, sound and timely advice on the full spectrum of contentious and non-contentious insolvencies and restructurings. We routinely act for creditors, debtors, directors, investors, and insolvency practitioners in many of the world’s largest insolvencies and restructurings. We advise on the full range of issues which can arise in these situations, including the winding up of a company, litigating related proceedings in multiple jurisdictions and developing schemes of arrangement to enable refinancing. Last year Appleby were involved in 108 insolvency & restructuring matters, with a total value exceeding USD $15bn. Our experience includes:
- Acting for liquidators, provisional liquidators and other office holders as well as regularly representing creditors, shareholders and directors in relation to the appointment and removal of such office holders and claims brought by or against them
- Cross-border issues such as coordination with US Chapter 11 proceedings and Chapter 15 recognition, and the recognition in our home jurisdictions of office-holders appointed in other jurisdictions
- Liquidation of all types of companies and partnerships, both on conventional insolvency grounds and as a consequence of governmental or regulatory action in the public interest.
- Insolvency proceedings relating to mutual funds and hedge funds
- Creditors’ rights and schemes of arrangement
- Dissenting shareholder claims in mergers
- Both solvent and insolvent restructurings
Appleby has played a leading role in almost all major offshore restructurings, acting for either the creditors or the company. We have a talented team of experts who have earned a reputation for thoroughly understanding the rights and obligations of the parties who find themselves involved with financially distressed companies. We work with our clients to determine the best approach for preserving the enterprise value of distressed companies and obtaining maximum value for creditors. Every case has unique challenges and opportunities and our goal is to deploy the full range and depth of our team’s experience through multiple and diverse strategies.
Some of the leading insolvency & restructuring authority cases in which Appleby has been involved include:
BCCI – Appleby played a key role in the world’s largest banking insolvency case, Bank of Credit and Commerce International. This ran for 25 years across three liquidation estates and saw creditor recoveries at over 90% of proven claims. The creation of an asset pooling arrangement between the UK, Luxembourg and the Cayman Islands was at the forefront of cross-border insolvency innovation and was key to the orderly liquidation of the estates.
International Banking and Financial Services Group - Appleby acted as lead counsel in Jersey, Guernsey and the Isle of Man on the successful transfer of the client’s deposit-taking, investment and fund services businesses to offshore branches of the group’s onshore plc by means of court-sanctioned banking schemes and related contractual transfers. The reorganisation included the first ever banking business scheme in the Isle of Man, setting a precedent for subsequent transactions. Appleby has advised on every major banking reorganisation in the crown dependencies in the last five years and during that time we estimate that we have transferred nearly GBP50bn of deposits.
Ocean Rig - Appleby advised on the restructuring of Ocean Rig – the largest ever restructuring in the history of the Cayman Islands. Ocean Rig’s companies were placed into provisional liquidation to effect schemes of arrangement, and restructuring effected within six months. This resulted in an exchange of US$3.7bn of debt for new equity in Ocean Rig, approximately US$288m in cash and US$450m of new secured debt. This was the first case of a Cayman provisional liquidation of foreign-registered companies and implementation of an unprecedented form of court-to-court protocol.