In Ltd [2020] HKCFI 311, the Hong Kong Court of First Instance declined to dismiss a winding-up petition where a debtor was unable to show the existence of a bona fide dispute on substantial grounds, notwithstanding the presence of an arbitration clause in the underlying contract.

Background Facts

Re China Oil Gangran Energy Group Holdings Ltd [2020] HKCFI 825

Court of First Instance

Reasons for Decision: Harris J

Recent decisions of the Hong Kong and Singapore courts show different approaches to the issue of when a winding-up petition will be allowed to proceed in circumstances where there is an arbitration agreement.

近日，香港高等法院原讼法庭夏利士法官在深圳市年富供应链有限公司 (以下简称“深圳年富”)的破产案件（[2020]HKCFI 965）中 (为表述方便，香港公司清盘在本文亦称为“破产”)(以下简称“深圳年富案”)，再次承认和协助了内地的破产程序及破产管理人身份。这是继上海华信国际集团有限公司([2020]HKCFI 167) 的破产案件(以下简称“上海华信案”) 后，香港法院第二次承认和协助内地的破产程序及破产管理人身份。

近半年来，香港法院已经在两起案例中认可了内地法院指定的破产管理人身份并提供司法协助，这不仅进一步巩固了香港法院对内地破产管理人承认和协助的相关法律原则与实务，更适应了内地和香港在破产程序中相互协助的需求，对两地跨境破产协助具有重要的参考价值。

本文将简要介绍香港跨境破产协助的法律要点：

Shenzhen Everich Supply Chain Co, Ltd (in Liquidation in the Mainland of the People's Republic of China) [2020] HKCFI 965 (date of judgment: 4 June 2020)

For the second time the Hong Kong Court has recognised a PRC winding-up proceeding and granted assistance to the administrator of a PRC company appointed by a PRC Court. The Hong Kong Court also granted the administrator an express right to take control of the company's subsidiaries in Hong Kong.

Background

The recent decision in Re The Liquidator of Shenzhen Everich Supply Chain Co, Ltd (in liquidation in the People’s Republic of China) [2020] HKCFI 965 reaffirms the willingness of the Hong Kong Companies Court (the “Companies Court”) to recognise the winding-up of a company in Mainland China and thereby grant recognition and assistance to liquidators appointed in the Mainland.

In The Joint and Several Provisional Liquidators of China Oil Gangran Energy Group Holdings Limited [2020] HKCFI 825, the Hong Kong Court continued a trend of recognising foreign soft-touch provisional liquidators.

Introduction

The COVID-19 pandemic has affected businesses all over the world. Whilst directors will actually consider that their primary responsibility is to keep the business running during difficult times, it is equally important to bear in mind that this should be done in accordance with the law and via appropriate means. A director should always have regard to the company's financial status and avoid entering into transactions that are in breach of his/her fiduciary duties as director, especially when the company's solvency is open to question.

“As is well known, other than schemes of arrangement, Hong Kong has no legislation that provides for corporate debt restructuring or rehabilitation. This unsatisfactory state of affairs has been the subject of much invariably adverse comment for two decades now. It is brought into unforgiving focus by the economic problems that Covid-19 is causing.