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Corporate minds do not all think alike: The Supreme Court affirms a purposive approach to the corporate attribution doctrine

Two recent Supreme Court of Canada decisions demonstrate that the corporate attribution doctrine is not a one-size-fits-all approach.

Canada, Company & Commercial, Insolvency & Restructuring, Litigation, McCarthy Tétrault LLP, Supreme Court of Canada
Hong Kong Court of First Instance follows the Guy Lam approach notwithstanding the recent English Privy Council's decision in Sian Participation

We recently blogged (here) about the Privy Council decision of Sian Participation Corporation (In Liquidation) v Halimeda InternationalLtd [2024] UKPC 16 (

Hong Kong, Arbitration & ADR, Insolvency & Restructuring, Litigation, Herbert Smith Freehills LLP, Liquidation
Directors Take Note: English Court Awards Substantial Judgment Under New "Trading Misfeasance" Law

The £150 million judgment makes clear the full impact of the trading misfeasance offence for directors.

United Kingdom, Company & Commercial, Insolvency & Restructuring, Litigation, Jones Day
BHS Liquidators Win Record Wrongful Trading Judgment—and Establish New "Misfeasance Trading" Law

FRP Advisory Trading Limited won the United Kingdom's largest-ever wrongful trading claim and successfully established the first "misfeasance trading" claim against former directors of British Home Stores ("BHS"), highlighting the critical responsibilities of directors managing financially troubled company assets.

United Kingdom, Insolvency & Restructuring, Litigation, Jones Day, Liquidation, Insolvency Act 1986 (UK)
Navigating the crossroads between arbitration and insolvency proceedings: the Hong Kong Court of Appeal applies Guy Lam principles in a winding up case involving an arbitration clause

Can a creditor obtain a winding up order against a debtor company if the underlying dispute over the debt is subject to an arbitration agreement between the parties?

Hong Kong, Arbitration & ADR, Insolvency & Restructuring, Herbert Smith Freehills LLP
There’s Something About (Hail) Mary: Appeals of Sale Processes and Pre-Receivership Sale Agreements

Court approval of a sale process in receivership or Bankruptcy and Insolvency Act (“BIA”) proposal proceedings is generally a procedural order and objectors do not have an appeal as of right; they must seek leave and meet a high test in order obtain it. However, in Peakhill Capital Inc. v.

Canada, Ontario, Insolvency & Restructuring, Litigation, McCarthy Tétrault LLP
What is the effect of Guy Lam on winding up petitions involving an arbitration clause? A third voice

Where a winding up petition is based on a debt arising from a contract with a non-Hong Kong exclusive jurisdiction clause, the court will tend to dismiss or stay the winding up petition in favour of the parties’ agreed forum unless there are strong countervailing factors.

Hong Kong, Arbitration & ADR, Insolvency & Restructuring, Litigation, Herbert Smith Freehills LLP
When informal workouts don’t work out: English High Court rules bank that lent support to restructuring did not dishonestly assist in putting assets beyond creditors’ reach

In the current economic climate, more and more companies are getting into financial difficulties, informal workouts by debtor companies, with support from certain creditors, seem to be increasingly common.

United Kingdom, Banking, Insolvency & Restructuring, Litigation, Herbert Smith Freehills LLP
English High Court gives guidance on the so-called creditor duty where a company faces solvency-threatening claim

When a company is in the so-called “twilight zone” approaching insolvency, it is well-established that the directors’ fiduciary duties require them to take into account interest of creditors (the so-called “creditor duty”).

Hong Kong, United Kingdom, Company & Commercial, Insolvency & Restructuring, Litigation, Herbert Smith Freehills LLP, High Court of Justice (England & Wales)
Keeping the door open: Hong Kong Court reaffirms commitment to mutual recognition of insolvency proceedings with Mainland China

Two recent cases, Re Guangdong Overseas Construction Corporation [2023] HKCFI 1340 (the “GOCC Case“) and Re Trinity International Brands Limited [2023] HKCFI 1581 (the “Trinity Case“), reaffirm

China, Insolvency & Restructuring, Litigation, Herbert Smith Freehills LLP