Directors beware!
Following the liquidation order from the Hong Kong High Court on January 29, 2024, against China Evergrande Group Corporation, on September 12, 2024, China Evergrande Group filed a liquidation petition for its wholly owned subsidiary, CEG Holdings (BVI) Limited, which has been scheduled a hearing on February 17, 2025. In the liquidation process of a Hong Kong company, the maintenance and realisation of the company's assets and the return of the value to its creditors and other stakeholders are key concerns.
引言
继2024年1月29日香港高等法院向中国恒大集团公司发出清盘令后，2024年9月12日，中国恒大集团又向香港高等法院提呈针对其直接全资附属公司CEG Holdings (BVI) Limited的清盘呈请，并定于2025年2月17日举行清盘呈请聆讯。在香港公司清盘程序中，维护及变现公司资产，向公司债权人及其他持份者返还价值为重要关切。明确香港公司清盘令下公司在大陆境内财产的处置规则和程序，对于减少商业活动中的不确定性和风险，增强市场主体信心有重要意义。
一、香港高等法院作出清盘令的法律后果
根据《公司（清盘及杂项条文）条例》（简称《清盘条例》）第178条规定，若公司欠下债权人已到期应支付的款项相等于或超过1万美元债务的，任何一名或多名债权人、任何一名或多名分担人（指在公司清盘时有法律责任分担提供公司资产的人）或任何分担人的破产案受托人或遗产代理人可一起或分别提出清盘呈请，清盘令作出后有如下主要法律后果：
1. 诉讼搁置
根据《公司（清盘及杂项条文）条例》（简称《清盘条例》）第186条规定，当已有清盘令作出或已委托一名临时清盘人，除非获得法院许可，否则不得针对公司进行或展开任何诉讼或法律程序，而获法院许可者须在符合法院所施加的条款下进行或展开该等诉讼或法律程序，但涉及国家安全的案件除外。
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Introduction
Before the landmark decision of the Hong Kong Court of Final Appeal in Guy Kwok-Hung Lam v Tor Asia Credit Master Fund LP [2023] HKCFA 9 (“ReGuy Lam”), there had been a long-standing debate over the impact, if any, of an exclusive jurisdiction clause in favour of a foreign court (“EJC”) on the presentation of bankruptcy / winding-up petitions.