Introduction
On 14 May 2021, a cooperation mechanism was established between the Mainland and Hong Kong in the form of the Record of Meeting of the Supreme People's Court and the Government of the Hong Kong Special Administrative Region and Mutual Recognition of and Assistance to Bankruptcy (Insolvency) Proceedings between the Court of the Mainland and the Hong Kong Special Administrative Region and the Supreme People’s Court’s Opinion on taking forward a pilot measure in relation to Recognition and Assistance to Bankruptcy (Insolvency) Proceedings in the Hong Kong Special Administrative Re
When the Petitioner issued the petition to wind up the Company on 12 January 2021, the Company was already subject to another winding up petition in HCCW 410/2019 and the Petitioner was aware of the first petition. The Court reiterated that a creditor should not issue a petition if a petition has already been issued against the relevant debtor company. The Petitioner argued that there are exceptional circumstances, which justified the second petition: Re China Greenfresh Group Co Ltd [2021] HKCFI 36. It was said that the progress of the first petition was dilatory.
In Re Cosmos Machinery Enterprises Ltd [2021] HKCFI 2088, Mr Justice Harris corrected some privatisation scheme practice and issued the following guidance:
(1) Rule 2.10 of the Code on Takeovers and Mergers (“Rule 2.10”) did not prevent offeror concert parties from voting on privatisation schemes.
“…it is fallacious and unrealistic for the Company to assume that the value of the Haitian Shares remained the same from February to August 2019. Between February and August 2019, Haitian Energy had published no less than nine announcements suggest that the financial condition of Haitian Energy was in a state of flux, and that the value of the Haitian Shares was susceptible to fluctuation.”
– William Wong SC (Deputy High Court Judge in Re Victor River Ltd)
INTRODUCTION
Slotine explains the steps and stakeholders involved in creditors’ voluntary winding-up and directors’ voluntary winding-up of an insolvent company in Hong Kong.
In Re Samson Paper Co Ltd [2021] HKCFI 2151, the Hong Kong Court issued for the first time a letter of request to the Shenzhen Bankruptcy Court requesting the latter to recognise and assist Hong Kong liquidators.
In recent years, there has been an increasing trend for different creditors to issue multiple petitions against the same debtor company. This may be due to the large number of listed companies in Hong Kong encountering financial difficulties during this period of economic downturn, or simply a lack of knowledge of the law in this area.
In May 2021, we published an article, Milestone in Hong Kong-Mainland China cross border insolvency: Mutual recognition of and assistance to Insolvency Proceedings between Hong Kong and Mainland China, which highlighted the key features of the cooperation mechanism in relation to Hong Kong-Mainland China cross border insolvency set out in the Record of Meeting of the Supreme Peopl
2021年5月11日，最高人民法院發佈了《關於開展認可和協助香港特別行政區破產程式試點工作的意見》（以下簡稱《試點意見》）。
《試點意見》指定上海市、福建省廈門市、廣東省深圳市人民法院開展認可和協助香港破產程式的試點工作。
《試點意見》規定了認可和協助的程式範圍。根據《試點意見》第二條規定，香港破產程式是指依據香港特別行政區《公司（清盤及雜項條文）條例》《公司條例》進行的集體清償程式，也就是該破產程式針對的是公司而不包括個人，破產程式的性質是“集體清償程式”。
《試點意見》明確了申請主體和受理法院。《試點意見》第五條規定認可和協助香港破產程式的申請主體為香港管理人。依據《試點意見》審理的跨境破產協助案件，由試點地區的中級人民法院管轄。向兩個以上有管轄權的人民法院提出申請的，由最先立案的人民法院管轄。