Australia's new ipso facto regime came into effect as of 1 July 2018. The regime enacted in September 2017 through the Treasury Laws Amendment (2017 Enterprise Incentives No. 2) Act 2017 (Cth) amends the Corporations Act 2001 (Cth) providing for the operation of the ipso facto stay for certain corporate restructuring and insolvency procedures.
The reform is designed to improve the likelihood of recovery for companies experiencing trading difficulties by limiting circumstances where a counterparty can modify or terminate an existing contract based solely on the basis of an insolvency event or trading difficulties.
The new regime applies to contracts entered after 1 July 2018. Parties need to ensure that contracts entered after this date protect parties' rights in situations of default and comply with the new regime. Anti-avoidance provisions capture contract terms that attempt to circumvent the Act and limited exemptions apply.
How the Courts will interpret the new regime is yet to be seen. In the meantime, the potential implications for clients in the construction and property sector needs closer review.
If you have any questions or concerns about how these changes may affect your transactions, call Janette Tavelli and the Integra Team. Also, to see the full article on this topic see the link below.