The English High Court in Telnic Ltd v Knipp Medien Und Kommunikation GmbH [2020] EWHC 2075 (Ch) has confirmed that the court has discretion to restrain a winding-up petition against debtor's when the debt is governed by an arbitration agreement.
Knipp Medien Und Kommunikation GmbH (Knipp) appealed against an order to stay its winding-up petition against Telnic Limited (Telnic). Telnic also brought a cross-appeal seeking orders that Knipp's petition be dismissed rather than stayed.
Susheel Dutt has unsuccessfully appealed a decision of the Disciplinary Tribunal that he was guilty of unbecoming conduct, negligence or incompetence in a professional capacity and the suspension of his membership for a period of 18 months, highlighting the important role that insolvency practitioners play and the high standards expected of the profession.
本文主要讨论公司型基金、合伙型基金自行清算的主要流程，并就基金自行清算出现僵局等情形时，如何申请法院启动基金强制清算程序的主要问题作初步探讨。
基金清算适用的法律
对于公司型基金的清算，其主要适用《公司法》以及《最高人民法院关于适用＜中华人民共和国公司法＞若干问题的规定（二）》（下称“《公司法司法解释二》”）《关于审理公司强制清算案件工作座谈会纪要》（下称“《强制清算纪要》”）以及部分高院出台的相关审判指导。
对于合伙型基金的清算，除适用《合伙企业法》外，可参照公司法律的有关规定。对此，《民法总则》第一百零八条规定，“非法人组织除适用本章规定外，参照适用本编第三章第一节的有关规定”；第三编第一节对法人清算作出了相关规定，其中第七十一条规定，“法人的清算程序和清算组职权，依照有关法律的规定；没有规定的，参照适用公司法律的有关规定”。例如，北京一中院在（2020）京01清申27号《民事裁定书》中基于上述规定，认定合伙型基金的清算应当参照《公司法》的相关规定进行。
除前述规定外，中国证监会、中基协的相关规定，以及其他行业自治组织的相关规定，亦可作为基金清算的依据。
The Supreme Court in Sevilleja v Marex Financial Ltd [2020] UKSC 31 has brought much needed clarity to the legal basis and scope of the so-called ‘reflective loss’ principle. The effect of the decision is a ‘bright line’ rule that bars claims by shareholders for loss in value of their shares arising as a consequence of the company having suffered loss, in respect of which the company has a cause of action against the same wrong-doer.
The High Court, in Quinn v Toon [2020] NZHC 816, confirmed that only the reasonable costs of the liquidators will be recoverable.
Ms Toon applied for orders under ss 276 and 278 of the Companies Act 1993 to approve her remuneration claiming $101,729 plus GST and expenses for her work as the liquidator of Investacorp Holdings Ltd.
This was a solvent liquidation. While there were no creditors, there were disputes between shareholders that Ms Toon spent a considerable amount of time investigating.
In our December 2019 newsletter we commented that the Madoff bankruptcy had one more big case to go, chasing USD3.2b held by foreign banks. The US Supreme Court has just refused to hear an application by major banks and companies, including Koch Industries Inc, to prevent Mr Picard, the bankruptcy trustee, from pursuing claims aimed at recouping funds that were transferred overseas. In the meantime, Mr Madoff has been refused early
A Singaporean Court in Anan Group (Singapore) PTE Ltd v VTB Bank (Public Joint Stock Company) [2020] SGCA 33 has recently confirmed the Court’s approach in assessing arbitration clauses when an application has been brought to put a company into liquidation.
The parties in this case are parties to an arbitration agreement. The respondent applied to put the appellant into liquidation. The Court considered that the winding up proceeding should be stayed with the underlying dispute to be resolved through arbitration.
The English High Court ruled that prospective emergency legislation to amend insolvency laws due to the COVID-19 pandemic could not prevent liquidation proceedings from being brought. In Shorts Gardens LLP v London Borough of Camden Council [2020] EWHC 1001 (Ch) applications were made by two companies to restrain local councils from bringing liquidation proceedings in respect of unpaid rates and costs orders.
In our April newsletter, we noted that the UK Government had announced proposed changes to insolvency laws. On 20 May 2020, the Corporate Insolvency and Governance Bill (UK) was introduced. The proposed reforms include:
The Government has passed an omnibus bill which introduced amendments that will assist New Zealand to respond to the wide-ranging effects of COVID-19.
In brief the changes to insolvency legislation are: