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Global rules on foreign direct investment (FDI)
Cross-border acquisitions and investments increasingly trigger foreign direct investment (FDI) screening requirements.
Global | Publication | October 19, 2017
Bankruptcy lawyers in our New York office recently obtained a decision from the North Carolina Court of Appeals reversing a summary judgment order that had been entered against our client, Friday Investments. Sam Kohn argued the appeal.
Friday is the owner of a large mall in Charlotte, North Carolina, and the lessor under a lease to Bally Total Fitness of the Mid-Atlantic, which is guaranteed by its parent, Bally Total Fitness Holding Corporation. Bally Mid-Atlantic breached its obligations under the lease, and Friday sought recovery from Bally Holding as guarantor.
In the trial court, Bally Holding argued that notwithstanding the assumption by the Bally debtors of the underlying lease in its 2009 bankruptcy proceeding, its obligations under the guaranty had been discharged by the Bally debtors’ Chapter 11 plan. The trial court agreed and granted summary judgment for Bally Holding, reading the provisions of the plan that consolidated all of the Bally debtors for distribution purposes to include the elimination of intercompany guaranties.
On appeal, the bankruptcy team argued that the express terms of the Bally debtors’ plan provided for the continuation of the guaranty post-bankruptcy, and in the alternative that there was a genuine issue of material fact as to whether the guaranty was required to be maintained, notwithstanding the plan’s consolidation provisions. By a two-to-one margin, the North Carolina Court of Appeals held that the trial court erred in granting summary judgment, and remanded for further consideration of the effect of the plan’s consolidation provisions and whether the guaranty was required to be maintained under the plan. Notably, the dissenting judge would have remanded with instructions to grant summary judgment in favor of our client, reading the plan’s consolidation provisions not to have any substantive effect and that Bally Holding’s guaranty was not discharged by the Bally debtors’ plan.
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Cross-border acquisitions and investments increasingly trigger foreign direct investment (FDI) screening requirements.
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On February 2, 2024, the Belgian Presidency of the Council of the European Union confirmed that the Committee of Permanent Representatives had signed the Artificial Intelligence (AI) Regulation, referred to as the AI Act. Approval by the EU Parliament followed on 13 March 2024, and the AI Act is likely to appear in the EU’s Official Journal around May 2024. The AI Act aims to establish a stringent legal framework governing the development, marketing, and utilisation of artificial intelligence within the region, thereby marking a significant advancement in the regulation of this burgeoning domain.
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The private credit market and direct lending have grown and diversified immensely in the past decade, offering alternative sources and terms of debt compared to those historically provided by the syndicated leveraged loan and public issuance markets. Consequently, they are fast becoming pivotal components in the capital ecosystem, so much so that the Bank of England consider that the private credit market is currently responsible for approximately $1.8 trillion of debt issuance, which is four times its size in 2015. This growth has been particularly pronounced in Europe and the US but there has also been significant activity in Asia.
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