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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
Restructuring & Insolvency Newsletter - July 2024 | News

Judges of Barcelona unify principles on certain points of insolvency law

Spain, Insolvency & Restructuring, Garrigues, Insolvency, European Commission
Restructuring & Insolvency Newsletter - July 2024 | Judgments

International case law

European jurisprudence on universal and territorial procedures

Judgment of the Court of Justice of the European Union of April 18, 2024 (AIR BERLIN case)

European Union, Spain, Insolvency & Restructuring, Litigation, Garrigues, Insolvency, Court of Justice of the European Union
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
Harmonisation of insolvency avoidance rights from the Hungarian perspective

Hungarian insolvency law already knows the concept of avoidance actions. Allowing creditors and liquidators to challenge certain transactions aims to protect the value of the insolvency estate. Although the principles of Hungarian insolvency law are the same as those outlined in the European Commission's proposal for a Directive (i.e. Proposed Directive), there are some aspects which would need to be carefully thought through before they are harmonised.

Hungary, Insolvency & Restructuring, CMS Cameron McKenna Nabarro Olswang LLP, Insolvency, European Commission, European Parliament
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
Hong Kong Companies Court clarifies the applicability of Re Guy Kwok Hung Lam to cases involving an arbitration clause

In Simplicity & Vogue Retailing (HK) Co., Limited [2023] HKCFI 1443, the Hong Kong Companies Court (the “Court“) made a winding up order against the Company on the basis that it failed to pay security in time. In considering the Company’s opposition grounds, the Court commented that it retains discretion to wind up a company in cases involving an arbitration clause.

Hong Kong, Arbitration & ADR, Insolvency & Restructuring, Litigation, Herbert Smith Freehills LLP, Arbitration clause