Given Hong Kong’s status as an international financial hub and the fact that more than 75% of the companies listed on the main board of the Hong Kong Stock Exchange are incorporated in either the Cayman Islands or in Bermuda (only around 11 percent are incorporated in Hong Kong), it is common for foreign liquidators to conduct investigations in Hong Kong.

As a general recap (following recent developments in the jurisprudence) [1], in order to seek recognition and assistance from the Hong Kong Court, a foreign liquidator would have to establish the following:

5 Most Impactful Hong Kong Restructuring and Insolvency cases in 2023

2023 was a busy year for the restructuring and insolvency industry in Hong Kong. we had a ground breaking decision of the Court of Final Appeal (CFA) ruling on the conflict between dispute resolution clauses and the Court’s jurisdiction to wind-up/bankrupt a debtor. We also saw the court extend and strengthen its reach to assist insolvency officeholders (whether appointed in Hong Kong or elsewhere). 

The recent Hong Kong Court of First Instance decision of Re Shandong Chenming Paper Holdings Limited marks another intersection between the public domain of insolvency and the private realm of arbitration.

In this and previous decisions, the Hong Kong courts have grappled with the issue of which should take priority – a winding-up petition, or the contractual term in the relevant contract that states disputes are to be resolved through arbitration or litigation.

Two primary considerations fuel this debate:

Introduction

In a landmark decision issued in July, Re Leading Holdings Group Limited [2023] HKCFI 1770, the Hong Kong Courts addressed, for the first time, the right of an investor of a global note to present a winding-up petition as a contingent creditor.

The Case

The relevant company was incorporated in the Cayman Islands and was listed on the Hong Kong Stock Exchange. It issued 12% Senior Notes which were due in 2022 and the petitioner was the beneficial owner of a sub-interest in those notes.

The Government of Hong Kong continues its push towards favouring digitisation over using hardcopy documents. The new changes to local bankruptcy laws allows: (1) electronic service of statutory demands; (2) using electronic bundles and skeletons for winding-up and bankruptcy applications; and (3) allowing electronic submission of documents to the Official Receiver.

Electronic service of statutory demands: A game changer for creditors and debtors

Can a winding-up petition be presented when a company is being wounded up voluntarily?

The impact upon the economy as a result of COVID-19 sees no signs of abatement in the near-term and not a single sector of industry has been spared. Economic data shows that GDP declines in real terms, along with private expenditure.

Perhaps some of the rounds of stimulus distributed by the HKSAR Government will help cushion the local economy, but in any event any recovery will be patchy at best with some sectors facing a much longer period of uncertainty than others.

Can a foreign order or judgment be immediately enforced in Hong Kong? Generally, the answer is no. Depending on where the judgment comes from, either it must first pass registration under the Foreign Judgments (Reciprocal Enforcement) Ordinance, or if not caught by that ordinance, there is also a common law regime for other judgments.

Handing over control of a company to strangers is a tough decision, but is one that is ever-present for a director facing the prospect of insolvency. Ian De Witt and Troy Greig point to some high-level issues that any sensible director facing this scenario should bear in mind.

1. Letting go, but staying involved

A bankrupt’s solicitors can be required to handover to the trustees in bankruptcy the bankrupt contact information, full details of last known whereabouts, and client trust account ledger records, pursuant to section 29 of the Bankruptcy Ordinance.