簡介

2020 年 11 月 12 日，破產管理署發出 2020 年第 2 號通告，當中載列關於臨時清盤人或清盤 人向破產管理署署長提交表格 D1 及 D2 的經修訂安排（「通告」）。臨時清盤人／清盤人 （統稱「清盤人」）如知悉董事有任何不當行為操守，須向破產管理署署長提交法定表格 D1。通告將於 2020 年 12 月 1 日生效。

現有安排

如無力償債公司的清盤人認為現任或前任董事的行為操守（不論單獨觀之或連同其作為任何其 他公司的董事的行為操守觀之）使該人不適宜關涉公司的管理，則須填妥香港法例第 32J 章 《公司（董事行為操守報告）規例》附表內的表格 D1，向破產管理署署長報告有關事宜。

破產管理署署長在收到上述報告後，如信納符合公眾利益，可根據香港法例第 32 章《公司 （清盤及雜項條文）條例》第 168I 條向法院申請針對任何現時或曾經出任無力償債公司董事 的人士發出取消資格令。

清盤人如認為前任或現任董事的行為操守不適宜公司的管理，即可援引報告規定。該規定同樣 適用於公司成員自動清盤的情況。

新安排

Introduction 

On 12 November 2020, the Official Receiver's Office ("ORO") issued Circular No. 2 / 2020 setting out the revised arrangement on submission of Form D1 and Form D2 by provisional liquidators or liquidators to the Official Receiver ("Circular"). Provisional liquidators / liquidators ("Liquidators") are required to submit a statutory Form D1 to the ORO when they become aware of any unfit conduct of a director. The Circular takes effect from 1 December 2020.

Hong Kong's insolvency system is famous for its lack of statutory corporate rescue procedure ("CRP"). Owing to the lack of CRP, financially distressed companies may only recourse to rescue their business with (i) a non-statutory consensual agreement with major creditors to restructure debts, or (ii) a scheme of arrangement under the Companies Ordinance (Cap. 622). These options, however, have many problems such as being expensive, impracticable, inflexible and tedious.

The High Court has expedited a trial at which it would be determined whether luxury car manufacturer McLaren Group could obtain the release of certain security for the benefit of its senior noteholders, failing which a financial restructuring which was contingent on that release could not be implemented: McLaren Holdings Ltd v US Bank Trustees Ltd [2020] EWHC 1892 (Ch). The court concluded that, absent determination of the proceedings within one month, McLaren Group would have no choice but to enter an insolvency process and that this justified expedition in this case.

Introduction 

Section 209(1) of the Companies (Winding Up and Miscellaneous Provisions) Ordinance (Cap. 32) empowers the Hong Kong court to make an order staying the winding-up proceedings after the winding-up order is made upon the application of, among others, a contributory. However, in the case of Safe Castle Limited v China Silver Asset Management (Hong Kong) Limited [2020] HKCFI 1028, Harris J made it clear that the court will be reluctant to exercise its discretion to stay a winding-up order pending appeal.

Introduction

The High Court has held that s.236 of the Insolvency Act 1986 (“IA 1986”) does not have extra-territorial effect, so that the court is not generally permitted to make an order requiring a person outside the UK to produce books and papers and give an account of their dealings with an insolvent company: Re Akkurate Ltd (in Liquidation) [2020] EWHC 1433 (Ch).

The Government on 20 May 2020 published the Corporate Insolvency and Governance Bill, which contains the most far-reaching reforms to UK insolvency law in over 30 years. The Bill has been introduced on an emergency basis in an attempt to ensure that otherwise financially viable companies survive during a period of unprecedented interruption and turmoil. However, it could upset the delicate balance between debtors and creditors under UK insolvency law.

The new , currently expected to be enacted in mid-June 2020, is likely significantly to impact many supplies of goods and services to companies that are or may be in financial distress. However, the effects are sufficiently far-reaching that they could impact the balance of rights in all supply chains and particularly the drafting of supply contracts, with an impact on both suppliers and their customers or clients.

The Government on 20 May 2020 published the Corporate Insolvency and Governance Bill, which contains the most far-reaching reforms to UK insolvency law in over 30 years. The Bill has been introduced on an emergency basis in an attempt to ensure that otherwise financially viable companies survive during a period of unprecedented interruption and turmoil.