The Hong Kong Court of Appeal has finally laid to rest the vexed issue of whether an arbitration agreement or a winding-up petition should take precedence in an insolvency situation. In two parallel decisions, the Court of Appeal ruled that an arbitration agreement should be treated in the same way as an exclusive jurisdiction clause and that the principle should be given a wide interpretation.

According to a recent report, nearly 6,000 construction companies in the UK are in danger of going out of business. In Hong Kong, a major contractor has lost its licence and was removed from the government's registered list of contractors on 16 November 2023, with the company being given only a month to settle five private residential and commercial projects. When construction companies become insolvent, a host of tricky legal and practical issues come into play.

A bleak picture

Three recent Hong Kong first instance court decisions have left undecided the question of whether a winding-up petition will trump an agreement to arbitrate when it comes to a winding-up and particularly in the context of cross-claims. A Court of Final Appeal decision this spring had seemed to provide pointers that the parties' agreement would be upheld but the issue – particularly when it comes to unmeritorious and late arbitration applications – is dividing the courts.

For the first time in England & Wales, a court has ordered the winding-up of a listed plc on the grounds of loss of substratum – the abandonment of the company's original main object and purpose. If Hong Kong follows this decision, it would be very welcome to minority shareholders who would have an additional option to retrieve their investment monies from companies that embark on a completely different path to that for which they initially signed up.

In a pair of recent contrasting judgments, Re Agritrade Resources Ltd [2020] HKCFI 1967 and Re Rare Earth Magnesium Technology Group Holdings Ltd [2020] HKCFI 2260, the Hong Kong Court has once again confirmed its pragmatic approach towards applications by foreign liquidators and provisional liquidators for recognition and assistance in Hong Kong. The judgments emphasize the importance of adhering to the standard forms of order adopted by the Hong Kong courts in respect of such applications, and the need for any departure from the standard form to be fully justified.

Just in time for the Chinese New Year, a Hong Kong court has taken a major step forward in the developing law on cross-border insolvency by recognizing a mainland Chinese liquidation for the first time. In the Joint and Several Liquidators of CEFC Shanghai International Group Ltd [2020] HKCFI 167, Mr. Justice Harris granted recognition and assistance to mainland administrators in Hong Kong so they could perform their functions and protect assets held in Hong Kong from enforcement.

Ministerial Decisions

Issuing the Executive Regulations of Sultani Decree No. 31/96 on determining the rules for investing the funds of the Public Authority for Social Insurance and pension funds.

A list of the state pension funds to which these regulations apply is given in Article 2 of this decision.

Issued on 13 June 2017. Effective from the day after the publication date.

Issuing the licensing and working system at the site of the customs territory in the Special Economic Zone at Duqm.

Ministerial Decisions

Ministry of Manpower

Ministerial Decision No. 187/2017

Continuing the suspension of permits for the temporary recruitment of non-Omani manpower in certain professions. Permits are to be suspended for salesmen/marketing professionals and purchasing representatives, as specified in MD 608/2013 and MD 381/2016. The suspension period is to be extended by a further 6 months with effect from 1 June.

Issued on 29 May 2017.

Ministerial Decision No. 188/2017

Sultani Decrees

Sultani Decree No. 1/2017 Ratifying the General Budget of State for Fiscal Year 2017 Enacted on 1 January 2017. Effective from 1 January 2017

Ministerial Decisions

Diwani Decision No. 39/2016 Naming members of the Municipal Council, Muscat Governorate, for the second term. Issued on 28 December 2016

Ministerial Decision No. 165/2016 Publishing the Final Account of the State for Fiscal Year 2015. Issued on 21 December 2016

Ministerial Decisions

Ministerial Decision No. 261/2016 Amending Ministerial Decision No. 1020/2009 (on rights of audience for Omani and non-Omani lawyers). This decision extends the period within which non-Omani lawyers may have a right of audience before the Appeal Courts and Supreme Court to 31 December 2020. Issued on 22 December 2016. Effective from 1 January 2017