第一部分：向香港特别行政区和中国内地客户介绍孤儿SPV打包重组交易

Part 1: Introduction to orphan SPV repackaging transactions for Hong Kong SAR and Mainland China clients

This article was written by Richard Mazzochi, Minny Siu, Angus Sip and Ryan Iskandar

An insolvent enterprise incorporated in Mainland China (“PRC”) or its creditors (“Applicant”) may institute a bankruptcy proceeding against the insolvent enterprise under the PRC Enterprise Bankruptcy Law (“Bankruptcy Law”) by the filing of a bankruptcy petition. There have long been complaints by industry practitioners that PRC courts are reluctant to register bankruptcy petitions.

任何在中国内地（“”）注册成立的企业，如不能清偿到期债务，并且资产不足以清偿全部债务或者明显缺乏清偿能力的，可由该企业或其债权人（“”）提交破产申请，继而根据《中华人民共和国企业破产法》（“《破产法》”）对该企业发起破产法律程序。但是，长期以来，备受业内人士诟病的是，中国法院迟迟未对破产申请实施立案登记制度。在此背景下，最高人民法院（“”）于2016年7月颁布指导通知[1]（“《2016年最高院通知》”），旨在简化和规范登记破产案件的立案受理工作。

最高院通知：优化立案程序

FSA has made a statement explaining how the bank’s failure to comply with FSA’s liquidity guidelines as they applied to it was critical. It says that while the bank’s downfall was not directly due to the breaches, the breaches happened at a critical period for the financial markets and at a time FSA needed banks to keep it up to date on their liquidity. (Source: FSA Explains Liquidity Importance)

FSA has published a set of frequently asked questions designed to help readers understand MG Global’s insolvency position and investors’ rights under it. (Source: MF Global Investors – Your Questions Answered)

FSA has won a case in the High Court in which the court held one individual and two businesses were operating a collective investment scheme without authorisation. The court banned James Maynard from selling land for business purposes in the UK for life and made a bankruptcy order against him. It ordered him and Countrywide Land Holdings Limited to pay £31,896,194 to FSA and ordered Plateau Development & Land Limited, now in liquidation, to pay £918,975. Tracey McDermott said there was a low probability of getting meaningful compensation but that FSA had scored an important victory.

WorldSpreads Limited has become the third firm to enter into the Special Administration Regime. The firm, a spread betting company, entered into the regime following the discovery of accounting irregularities which led to a finding that the firm could not continue in business. (Source: Firm Enters Special Administration)

The Internal Market Directorate is discussing with stakeholders whether the debt write-down or bail-in tool would help a managed reorganisation or winding down of a financial institution that faced imminent failure. This discussion takes place in the context of the ongoing work on an EU framework for managing crises in the banking sector. The debt write-down or bail-in tool would complement the special resolution powers that need to be available for authorities to stem risks to financial stability and limit the recourse to taxpayer’s money.

Background

The United Kingdom Supreme Court recently decided the appeal in the important case In the Matter of Lehman Brothers International (Europe) (LBIE) (In Administration) and In the matter of the Insolvency Act 1986 [2012] UK (the Case).

In summary, the Case is about which claims can be treated as claims for client money. This turns on interpreting the rules of the UK’s Financial Services Authority’s (FSA) Client Assets Sourcebook (CASS) in chapter 7 of CASS. These FSA rules stem from the Markets in Financial Instruments Directive (MiFID).