在某些情况下，开曼公司的官方清算人可能能够采取行动追回公司破产前转移的资产。对于那些关注濒临破产的开曼公司事务的人来说，了解开曼群岛官方清算人和大法院所拥有的法定权力至关重要。

可撤销的优先权

《公司法（修订版）》（「该法」）规定，「在公司无法偿还第93 条所指的债务时，公司为了使该债权人优先于其他债权人而对任何债权人作出、招致、承担或遭受的任何财产转让或转移，或对财产的抵押，以及每项付款义务和司法程序，如果是在清算开始前六个月内作出、招致、承担或遭受的，经公司清算人申请，均可撤销。」

值得注意的是，如果在清算开始前六 (6) 个月内发生、产生、取得或遭受付款，则向开曼公司「关联方」支付的款项应被视为是为了给予债权人优先权而支付，因此，根据公司清算人的申请，该款项可予撤销。

如果债权人有能力控制开曼公司或在公司财务和经营决策方面施加重大影响，则该债权人应被视为「关联方」。

公司在什么情况下无法偿还债务？

若发生下列情况，开曼公司将被视为无力偿还债务：

(a) 未遵守法定要求；

Introduction

In certain circumstances, the liquidator of a British Virgin Islands (“BVI”) company may be able to set aside certain transactions which took place in the lead up to the company’s liquidation. It is important for those concerned with the affairs of a BVI company that they are aware of the statutory powers available to the liquidator.

Introduction

Liquidations in the British Virgin Islands (“BVI”) can be either:

1) an insolvent liquidation and therefore governed by the Insolvency Act 2003 (as amended) (“Insolvency Act”); or

2) a solvent liquidation and therefore governed by the BVI Business Companies Act (as amended) (“Companies Act”). The Companies Act was amended by the BVI Business Companies (Amendment) Act 2022 and BVI Business Companies (Amendment) Regulations 2022.

In Harrington v. Purdue Pharma LP, in a 5-4 decision, the Supreme Court held that the Bankruptcy Code does not authorize bankruptcy courts to confirm a Chapter 11 bankruptcy plan that discharges creditors’ claims against third parties without the consent of the affected claimants. The decision rejects the bankruptcy plan of Purdue Pharma, which had released members of the Sackler family from liability for their role in the opioid crisis. Justice Gorsuch wrote the majority decision. Justice Kavanaugh dissented, joined by Chief Justice Roberts and Justices Kagan and Sotomayor.

Introduction

Liquidations in the British Virgin Islands (“BVI”) do not have a rescue function and mark the end of a company’s lifecycle. A liquidation in the BVI can be either:

If you are considering terminating a Cayman company by way of voluntary liquidation or strike-off, it is crucial to adhere to specific deadlines and procedures to avoid unnecessary fees for the year 2024. There will be varying requirements depending on whether the entity is regulated or non-regulated.

Options for termination - voluntary liquidation or strike-off

In certain circumstances the official liquidator of a Cayman company may be able to take action to recover assets which have been transferred in the run up to the company’s insolvency. It is important for those concerned with the affairs of a Cayman company in the twilight of insolvency to be aware of the statutory powers available to the official liquidator and the Grand Court in the Cayman Islands.

Summary

Introduction

What happens when a shady businessman transfers $1 million from one floundering car dealership to another via the bank account of an innocent immigrant? Will the first dealership’s future chapter 7 trustee be allowed to recover from the naïve newcomer as the “initial transferee” of a fraudulent transfer as per the strict letter of the law? Or will our brave courts of equity exercise their powers to prevent a most grave injustice?

A foreign (non-U.S.) company can be dragged unwillingly into a U.S. bankruptcy case if the bankruptcy court has “personal jurisdiction” over the company.