SWEDEN Law and Practice Contributed by: Albert Wållgren, Henrik Ossborn and Lionardo Ojeda, Advokatfirman Vinge KB
Claw-Back In bankruptcy, under certain circumstances and subject to applicable time limits, transactions can be reversed. The relevant assets shall then be returned to and included in the bankruptcy estate. Broadly, these transactions include situ - ations where: • the debtor has conveyed property fraudulent - ly or preferentially to one creditor to the detri - ment of its other creditors before the initiation of the relevant insolvency proceedings; • the debtor has created a new security inter - est, or has repaid a debt that is not due or that is considerable compared to the value of the debtor’s assets; or • the payment is made through an unusual means of payment. In most situations, a claim for recovery can be made in respect of actions that were made dur - ing the three months preceding the commence - ment of the bankruptcy proceedings. In certain situations, longer time limits apply, and, in other situations, there are no time limits. These include situations where the other party in a transaction is closely related to the debtor, such as a sub - sidiary or a parent company. It should be noted that, under Swedish law, a perfected sale or security interest can also be subject to claw-back in accordance with the above-mentioned rules. 6.2 SPEs A Typical SPE Structure An SPE is usually set up for the sole purpose of the securitisation, and certain measures are taken to avoid liabilities relating to historic oper - ations or to operations other than the securiti - sation. In most cases, an SPE is a newly estab - lished off-the-shelf company directly owned and
• avoiding any bankruptcy proceedings relat - ing to the originator affecting the issuer or its assets; and • ensuring that the securitised assets will not be included in the originator’s bankruptcy estate. Assets of the Bankruptcy Estate Under Swedish law, the bankruptcy estate shall include the property of the debtor at the time the bankruptcy order was issued, including property Assets that have been transferred by the origi - nator to the issuer in connection with a secu - ritisation transaction may be included in the bankruptcy estate of the originator, unless the transfer has been duly perfected and a valid right in rem ( sakrättsligt skydd ) has been established. The steps required to create a perfected transfer of assets depend on the asset, but in most cases will include: • the actual physical transfer of the asset from the transferor to the transferee; and/or • notification to the underlying debtor in con - nection with, for example, the transfer of a receivable under a non-negotiable promissory note ( enkelt skuldebrev ). Although Swedish law does not recognise a true sale as an independent legal concept, the Swed - ish Supreme Court ( Högsta Domstolen ) has established a number of prerequisites (as fur - ther outlined in 6.3 Transfer of Financial Assets ) that ought to be satisfied in a situation where an originator transfers receivables to another com - pany, while at the same time maintaining the role as servicer towards the debtors under the receivables, in order to avoid the reclassification of the actual sale transaction. that may be subject to claw-back. Transferred Assets and True Sales
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