Summary

The Protection of Wages on Insolvency (Amendment) Ordinance 2012 (the “Ordinance”) was passed by the Legislative Council on 18 April 2012 and came into force on 29 June 2012.

Under the Ordinance, the scope of the Protection of Wages on Insolvency Fund will be expanded to cover:

Foreign companies are frequently used to hold assets or other investments in Hong Kong. Some of these foreign companies are not registered under Part XI of the Companies Ordinance (“CO”) (“Unregistered Companies”). There are various reasons for not registering foreign companies in Hong Kong, including confidentiality and tax benefits. However, there may be some drawbacks to this approach.

Two guidance notes of relevance to the insurance industry were issued recently.

Did you know that the court's guiding principle on assessing remuneration for liquidators in respect of their administration of trust assets held by the company is similar to the principle applicable to liquidation work, that is, on a "value for money" basis rather than as an indemnity against cost?

In a judgment handed down on 6 March 2013, the Hong Kong High Court elaborated on the guiding principles the court will follow when determining whether or not it should exercise its 'exorbitant' jurisdiction to wind up an unregistered overseas company 'which prima facie is beyond the limits of territoriality'.

Companies with certain specific connections to Hong Kong are increasingly likely to fall under Hong Kong jurisdiction and Hong Kong’s Companies Ordinance. Both creditors and debtors will benefit from the clarity provided by the recent judgment in the case Re Pioneer Iron and Steel Group. Hong Kong’s Companies Ordinance expressly provides for the possibility of petitioning to liquidate, or wind-up, companies incorporated outside of Hong Kong.

The new Hong Kong Companies Ordinance is planned to come into operation in the first quarter of 2014. This wholesale renovation of the law governing the operation of companies in Hong Kong repeals almost all of the existing provisions of the Companies Ordinance with a few exceptions, including the existing insolvency and winding-up provisions. These will remain in their current form and be retitled as the Companies (Winding Up and Miscellaneous Provisions) Ordinance.

Did you know...that in urgent circumstances, the court may treat the presentation of a winding-up petition to the judge hearing the application for the appointment of provisional liquidators as being sufficient without the petition in fact having been presented at the office of the court registrar.

Did you know...that the Official Receiver retains its right to ad valorem fees (relating to pre-conversion realisations) pursuant to the Companies (Fees and Percentages) Order (Cap 32C) (“Fees Order”) on conversion of a compulsory liquidation to a creditors’ voluntary winding-up.