By Katya Batchelor is a banking and finance lawyer at leading South East law firm Thomson Snell & Passmore
The Corporate Insolvency and Governance Act 2020 (the Act) came into force on 26 June 2020. The Act introduces a number of procedures and measures, both permanent and temporary, which will have a significant impact on insolvency and restructuring law and practice. The Act provides rescue opportunities for companies in financial distress. There are also some temporary measures which were introduced in immediate response to the COVID-19 pandemic which include restrictions on using winding-up processes, changes to the wrongful trading rules and relaxation of meetings and filing requirements. However, those measures are only temporary, intended to mitigate the effect of the insolvency regime, particularly in relation to the responsibilities of directors, in response to the current economic crisis.
Key features of the new Act are discussed below.
A new standalone moratorium regime aims to give companies some breathing space from creditors in order to pursue a restructuring plan and maximise their chances of survival, so it is a marked shift from the previous trade creditor-focused process.
The initial period for the moratorium is 20 days, with another 20 day extension available. Further requests can be arranged with the consent of creditors or the permission of the court. During the moratorium the day-to-day management of the company remains with the directors under the supervision of a monitor, who is an insolvency practitioner. The monitor is required to keep under review whether it remains likely that the moratorium will result in the rescue of the company as a going concern.
In order to protect the company whilst the directors attempt the rescue, the creditors and lenders will not be able to take enforcement action, including enforcement of any security, against the company in moratorium. Any landlords of the company’s premises cannot exercise a right of forfeiture. With certain exceptions (see below), the company will not have to pay debts falling due prior to the moratorium.
However, certain debts of the company need to be paid during the moratorium. These include rents in respect of a period during the moratorium, amounts due for new supplies made during the moratorium and moratorium debts (debts to which the company will become subject during the moratorium). Most importantly, amounts due under financial service contracts, including loan agreements, are payable. If the company is unable to pay such amounts the moratorium will end, therefore support and communication with lenders are essential where a moratorium is used.
Notably, the Act also creates a new priority status for the moratorium debts and for debts under financial service contracts. If insolvency proceedings are begun within 12 weeks after the end of the moratorium, such debts will rank ahead of all other debts. This priority applies to financial services debts which fall due in the ordinary course before or during the moratorium. The priority does not apply if financial services debts are accelerated by the lender.
The new restructuring plan is another method by which a company can be rescued and is, in essence, similar to already widely-used schemes of arrangement; it is a court supervised restructuring process. It is different from a scheme of arrangement in that the Act allows for a restructuring plan to be imposed on a dissenting class of creditors. This is a new feature in the UK restructuring and insolvency context. The new restructuring plan procedure will limit the ability of dissenting creditors to block a viable restructuring proposal.
Dissenting creditors are able to be disenfranchised in this way only if they would not be worse off than in the “relevant alternative”. The “relevant alternative” is what would be the most likely outcome for the company if the restructuring plan is not implemented.
One of the advantages of the new restructuring plan is its flexibility. It can be combined with the new moratorium, which will prevent certain actions against the company while the restructuring plan is being progressed to approval.
Termination Clauses in Supply contracts
Under the new provisions of the Act, suppliers of goods and services are prevented from terminating or varying a contract or supply, or doing any other thing, because the customer has entered a relevant restructuring or insolvency process (this includes the new moratorium and new restructuring plan). They will also be banned from insisting on payments of sums falling due prior to insolvency as a condition of continued supply.
Suppliers will, however, be able to terminate contracts for new breaches which happen after the insolvency procedure begins, with the permission of the insolvency office holder or directors or with the permission of the court if the court is satisfied that continuation of the contract would cause the supplier hardship.
Notable exceptions are, again, financial contracts, which means that lenders will continue to be able to terminate, and exercise other rights, upon a borrower’s insolvency. Proposing a restructuring plan or moratorium is likely to trigger an event of default in most loan agreements. However, it is worth remembering that the new priority rules (discussed above) do not apply if financial services debt is accelerated.
The Act provides for a temporary suspension of wrongful trading rules. When considering the contribution that a director is required to make to company assets, the Act directs the court to assume that the director is not responsible for any worsening of the financial position of the company between 1 March 2020 and 30 September 2020.
Note that the Act reduces, but does not remove, the threat of personal liability arising from wrongful trading for directors who continue to trade through the Covid-19 pandemic not knowing whether the company will be able to avoid insolvency in the future. The fraudulent trading and director disqualification regimes and general director’s duties continue to apply.
Thinking Long-Term When Your Shareholders Won’t Let You
By MaryLee Sachs, US CEO, Brandpie
In a recent study of nearly 700 CEOs across the US and Europe, my team at Brandpie uncovered that 76% of chief executives think corporations need to shift focus from short-term profit delivery to long-term value creation.
So why have less than 5% actually made that shift?
Uncertainty about the future, and how to navigate increasing pressure from shareholders to survive the present moment can make the shift from short-term profit to long-term value feel like a pipe dream. And that makes sense, even more now than it did when we administered the survey before the COVID-19 pandemic had taken root.
But even amidst the most uncertain period of history in many of our lifetimes, and certainly the most uncertain business landscape, the transition is possible. If they can be bold enough, those CEOs who have identified the need to shift toward long-term value can join that 5% of leaders who have already taken the leap.
All they need is purpose.
But I’m not talking about surface-level mission statements or even commitments to meeting ESG requirements.
CEOs that are ready to successfully pursue long-term value creation need something much deeper: a north star that guides businesses from the inside out. A purpose that primes them, through long-term considerations, to respond quickly and effectively to short-term concerns to benefit share and stakeholders – including staff and brand audience – across the board.
A north star
The most common barrier to leaders looking to make a long-term impact is uncertainty, and the world is increasingly rife with it.
Businesses must find a way to offer some sense of security, to shareholders and stakeholders – and purpose is the path to that security.
Organizations that have orientated themselves around a north star internally and externally are better able to address, respond to, and pivot in the face of unexpected events and the endless changing market landscape.
Take a company like BlackRock – whose CEO Larry Fink has been a long-time advocate of purpose, calling it “the animating force” for achieving profit. When I spoke to Frank Cooper, BlackRock’s Senior Managing Director and Global CMO in a webinar this summer, he reiterated the organization’s dedication to their guiding purpose, and discussed how it helped them adapt to support their employees and their stakeholders when COVID-19 threatened financial security around the world.
“In the past six months, the COVID-19 crisis, alongside racial justice movements, have drastically changed the ways people expect corporations and corporate leaders to act,” said Cooper. Initially BlackRock prioritized a humanitarian response for the short term – focusing on guaranteeing as much security for their employees, customers, and shareholders as possible. But as part of a purpose-driven leadership team, Frank knew that short-term reactionary methods wouldn’t be enough.
“If you only play defense,” he said, “You will not end up winning. You have to play defense and offence.” And purpose is the game plan that allows you to do that.
BlackRock’s Fink was also one of 181 CEOs to sign a statement from the Business Roundtable last year, which redefined the purpose of corporations in light of changing business landscapes and an increased focus on stakeholders. The statement also expresses a commitment to prioritizing long-term value to the benefit of shareholders, serving as a reminder that long-term value creation and pleasing shareholders is not remotely mutually exclusive.
That Business Roundtable statement generated a lot of buzz about the rise of stakeholder capitalism, and for good reason. Increasingly, stakeholders are playing a more powerful role in the success of businesses than ever before. And that’s as it should be. Afterall, a company’s worth is only as good as the end service it delivers to meet customers’ needs, and when it comes to employees, they’re the best ambassadors for the business.
Both of these demographics are looking for long-term relationships, security, and to succeed in the long-term, businesses have to find a way to offer that now, or risk losing hold of customers and employees that are crucial to their success in the present moment.
Another rising trend that represents a blurring of the lines between share and stakeholder interests is a new wave of shareholder activism. Rather than advocating for strictly profit driven-changes, firms like Trian Partners and Blue Harbour are investing in order to steer companies towards higher ESG standards, reflecting a more purposeful approach to doing business with not just the future of a company, but the future of the world in mind.
Pivoting with purpose
As the COVID-19 crisis continues to throw uncertainty after uncertainty in the face of leaders fighting to keep business as usual as it can possibly be, purpose has proven to be a life-saving tool. It’s allowed many organizations to pivot authentically and smoothly to meet unprecedented internal and external needs.
To survive in any context, businesses constantly need to react to changing conversations to meet stakeholder needs, but the pandemic certainly underscores just how effectively a purpose can ferry organizations through short-term change toward more permanent and relevant adjustments. These uncertain times have also challenged businesses to recognize that purpose incorporates more than just something to stand for, but a way of acting, and focussing on service and fulfilment of need.
In the early days of the pandemic, companies like BrewDog, Ford, and Virgin Orbit stood out for their swift and apparently seamless transition to providing hand sanitizer, PPE, and respirators. Purpose played no uncertain part in these agile short-term pivots – by knowing who they are at a core level, and how their specific expertise positions them to respond to the evolving needs of their customers, they were able to quickly adapt to new, entirely unexpected needs for the greater good. They were driven by clear purpose internally that allowed for authentic outward change.
Playing the long game
True purpose is achieved through constant maintenance and centering – moving forward purpose must become part of corporate hygiene. The current state of business – and the world at large – demands that shareholders get on board with the value of that.
None of us have a crystal ball to determine what will happen. When you think about all the different things affecting the market – a pandemic, Black Lives Matter, equality, ESG – it’s hard to imagine how to prepare your business for any number of continually unexpected factors, while also priming it to last.
But a deeply-rooted purpose addresses both of these problems. By determining the long-term value your company can offer and implementing that internally, you create a resilient operation that knows what it stands for, how it operates, and is prepared to nimbly shift in the face of adversity.
No new normal will ever last, but businesses with a strong sense of internal self and clear, purposeful organization can.
New TransUnion Study Finds Smooth Digital Transactions “Essential to Business Survival” During and After Pandemic
Economist Intelligence Unit report for TransUnion highlights the crucial role emerging technologies will play in balancing fraud prevention and customer experience to help build consumer trust
A new global and UK study by the Economist Intelligence Unit for information and insights provider TransUnion has overwhelmingly found the key to whether or not companies go out of business hinges on providing consumers friction-right digital transactions. More than eight out of 10 executives, both in the UK and globally said they believe smooth transactions are “essential to business survival” rather than merely a competitive edge.
“Digital transformation has been rapidly accelerated by COVID-19, with over half (52%) of UK executives, and an even higher number globally (61%), saying they have changed their digital processes as a result of the pandemic,“ said Shail Deep, chief product officer at TransUnion in the UK. “That’s not surprising when we consider some of the changes that have come about as a result of social distancing, with reports of over a fifth (21%) of UK consumers shopping online[i] for the first time during the COVID-19 pandemic. Delivering a smooth customer journey is essential to building trust, yet over two thirds (69%) of UK businesses that made changes to their digital transaction process as a result of the pandemic experienced glitches.”
The global report, “New Dimensions of Change: Building Trust in a Digital Consumer Landscape,” is based on a study with 1,610 executives across 12 countries and five continents, including 180 senior executives from the UK. The research uncovered how technologies like artificial intelligence (AI), national digital IDs[ii] and super-apps[iii] can help overcome challenges to building digital trust.
Artificial Intelligence (AI) and Biometrics Will Play an Increasingly Important Role in Fraud Prevention and Customer Experience
Overwhelmingly global respondents answered that: 1) biometrics[iv] will be the dominant payment customer authentication method, 2) improved fraud detection and security is the greatest benefit to using AI, and 3) a national digital ID system can help prevent consumer fraud.
About three quarters (74%) of UK executives say biometrics are likely to be used to authenticate the vast majority of payments in the next 10 years, although the global response was even higher, at 85%. Approximately four in 10 UK and global respondents noted that improved fraud detection and security is the greatest benefit to using AI. This was the top selection by far worldwide and in the UK, with smoother customer experience coming second at about three out of 10, both in the UK and worldwide.
Furthermore, about seven out of 10 executives in the UK and globally think national digital IDs can help fraud prevention in consumer transactions. This comes at a time when the UK government has recently outlined steps to boost secure use of digital identity, with six guiding principles[v] published in September 2020. These are intended to strengthen consumer rights around digital identity to enable wider use across the country and reports say it could ultimately help boost GDP by 3% by 2030.
John Cannon, managing director of Fraud and ID at TransUnion in the UK said: “Protecting consumers and minimising the risks of fraud they face is crucial to earning their trust, and our research shows that biometrics, AI and digital IDs are seen by businesses as the key to trusted digital commerce going forward. Implementing the right tools and technology, alongside robust policies and processes, can help businesses strike the right balance when it comes to combining fraud prevention with a seamless customer experience. As this research shows, that’s no longer just desirable, it’s going to be critical for survival.”
Digital Identification Technology is at the Core of New Benefits
Authentication and verification are essential in building digital trust and new, cutting-edge solutions can combine a range of technologies to deliver instantaneous verification of customers and reduce fraud risks, whilst still supporting great customer experiences.
TransUnion recently introduced its Document Verification and Facial Recognition solution in the UK to help businesses meet this challenge, by providing customer document and selfie capture to enable real-time, online verification through the customer’s device. Near-field communication (NFC) reading of chip-enabled passports is built into the solution, to strengthen checks on ePassports. This is important given that 65% of UK executives stated that traditional authentication factors, such as birth certificate and passport in digital fraud and identity can overly inconvenience customers who value smooth digital transactions.
In order to fully embrace the new digital solutions available, such as ePassports, businesses need to have the right technology in place. And with identity fraud on the rise – up by nearly a third (32%) in the UK over the past five years, according to Cifas[vi]– the urgency for such tools is clear.
The impact of COVID-19 has fast-tracked the move to digital commerce, with nearly two-thirds of UK consumers[vii] reporting in a separate survey that they are using contactless payment technology more due to COVID-related health and safety concerns, and 61% saying they are happier using contactless payments now than they were in 2019.
In this context, with potential fraudsters seizing the opportunities that ‘faceless’ transactions present, there’s an even greater pressure on businesses to know who their customers are and carry out the right checks, keeping pace with the latest innovations. Only by doing so can they build the digital trust they will need to succeed.
Find out more about the UK report, “New Dimensions of Change” at TransUnion’s website.
How technology has made us communicate better in crisis
By Pete Hanlon, CTO of Moneypenny
COVID-19 has taught us a lot. We have embraced technology, some might say, survived so far because of it, yet also craved that human interaction. Working hand-in-hand, these two elements will shape our future.
The impact of COVID-19 has been immense, not just health-wise but also economically. To date, people have shown their resilience, adapting quickly to a remote way of working and through the use of technology.
We have embraced working remotely, using video conferencing tools, for example to give us some contact, some ‘normal’. We have proven we can do it, so the question is will this new normal we have adapted to, be sticking around?
Pre-pandemic, Moneypenny was operating in thrive mode and we rapidly had to switch to survival mode. The first challenge was arranging for our 1,000 employees to all work from home during the initial lockdown whilst offering a near seamless service to our customers. No mean feat for a company that had always been office based for our front line people.
Luckily for us, the first Covid lockdown happened 3 weeks after we’d just finished an 18 month long tech project to move our telephony system from on premise to the cloud. This meant we had some options but we did need to work tirelessly to get everyone home without missing any customers call.
We spent February and March trialing solutions and coming up with a plan and then we moved people to home working, team by team to assess call quality. Three weeks later everyone was working from home and it was service as normal for our clients.
This wouldn’t have been possible without a little strategizing and a lot of tech, not to mention a superb team that worked tirelessly to make it happen. Using our already brilliant tech as well as working with tech giants including Microsoft Teams, Twillio, Workplace by Facebook and Amazon Workspace, for example, who have all reported record levels of usage, we were able to look after our customers and our people. Our weekly mindfulness sessions took place online instead of in the office, team meetings happened virtually with vouchers for pizza, chocolate brownies were delivered to employees doors as a well-earned treat and our management teams shared their business and personal experiences via video conferencing.
Maintaining communication was, and remains, key. The very nature of our business gave us a head start in helping businesses, large and small, manage their calls throughout this, specifically tailoring our systems to their specific needs at any given time. Yet, we have embraced further new tech to work alongside our people for our clients: We quickly integrated Microsoft Teams into our systems so that our PAs could keep a track of their clients’ availability and efficiently manage calls whilst clients were working from home; We developed new online screening bots for clients to use in order to give them piece of mind that customers were symptom-free before any necessary meetings and using the same innovations to ensure social distancing and wellbeing to those who come into the office when restrictions allow. It seemed a very natural extension to the support we provide for businesses.
We are also finding that our customers are using our in-depth analysis systems to get a better understanding of call duration and patterns in calls and so on, as well as for reporting. And we are using them alongside deep learning technologies to identify common requests and common themes so that we can better serve our clients.
Before the pandemic there was significant movement towards more of a conversational and interactive experience when it comes to digital assistant technologies. This has only been heightened as natural language processing is advancing exponentially.
This demand for digital switchboard and new innovations has been a growth area during lockdown as companies were looking at ways to manage all their calls without in-house receptionists and switchboards.
As part of our business model, we offered digital switchboard for free to businesses for three months to help them at the start of lockdown allowing people to engage with an automated assistant by simply talking. Through this use, we’ve found that a voice-controlled switchboard is really gaining in popularity following the widespread adoption and acceptance of technologies like Alexa and Google in people’s homes.
A key area of focus for us, is the area of natural language processing (NLP), bridging the gap further between how we communicate and what a computer can understand. The field is advancing rapidly, and we are actively leveraging pre-trained transformer-based models such as BERT, RoBerta, Longformer to analyze and summarize live chat content. We are also monitoring and testing emerging deep learning models, such as Bigbird from Google and GPT-3 from OpenAI, to help advance our chat and digital switchboard offerings further.
Speech detection continues to get stronger. Currently the technology does not outperform our brilliant people, in my opinion, but it is starting to get closer to the matched experience. For us, however, our tech works hand-in-hand with our people enabling them to deliver brilliant and highly efficient customer service. I can’t see technology replacing people anytime soon. I do see it super-charging people in a way to be even better at what they do so we will just have to watch this space.
We always put trust at the heart of our tech roadmap and ask ourselves ‘Do our customers or our customers customers’ benefit from this tech innovation and does it improve the overall customer experience’. If the answer is yes, we progress
And finally, linking back to the relationship between humanity and tech, I believe that the future will be in video-based communication. It is increasingly important to us and we are investigating how deep learning can be applied to real-time video in order to power the future.
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