When a company is in financial distress, directors face difficult choices. Should they trade on to try to “trade out” of the company’s financial difficulties or should they file for insolvency? If they act too soon, will creditors complain that they should have done more to save the business? A recent English High Court case raises the prospect of directors potentially being held to account for decisions that “merely postpone the inevitable.”

A Hong Kong court has refused to sanction a scheme of arrangement, saying that practitioners should explain the key terms and effect of any proposed restructuring in a way which can be easily understood by the creditors and the court.

In Re Sino Oiland Gas Holdings Ltd [2024] HKCFI 1135, the Honourable Madam Justice Linda Chan refused to sanction a scheme of arrangement, saying that creditors had been given insufficient information about the restructuring and the scheme that would enable them to make an informed decision at the scheme meeting.

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.

The Hong Kong High Court has given a rare order for modifications to a scheme of arrangement after it had been implemented incorrectly by the scheme administrators. Drawing on instances in which the English courts have sanctioned modifications after approval by scheme creditors, the court held that the same principles apply here.

The Hong Kong court has granted an order forcing an uncooperative former director of a Hong Kong listed company to ratify the appointment of a Hong Kong liquidator as the sole director of the companies' four BVI subsidiaries. The court rejected the idea that the liquidators should be made to apply for fresh winding up orders in the BVI and stressed that courts should be ready to offer each other mutual assistance.

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.

In the case of Re Guangdong Overseas Construction Corporation [2023] HKCFI 1340, the Honourable Madam Justice Linda Chan recognized and provided assistance to a mainland China appointed administrator over a mainland China company in liquidation despite the administrator's application being outside the scope of the insolvency cooperation mechanism between Hong Kong and mainland China courts. The Hong Kong court affirmed that its jurisdiction to recognize and assist office-holders appointed by a court of another jurisdiction derives from common law.

A Hong Kong court has reminded debtors of the need to present a credible and realistic restructuring proposal when facing creditors threatening winding up actions. In Re Jiayuan International Group Limited (佳源國際控股有限公司) [2023] HKCFI 1254, the Honourable Madam Justice Linda Chan warned that it is not enough for a debtor company to merely point to commercial discussions with some of the creditors when seeking an adjournment.

The Hong Kong Court of Final Appeal (CFA) has confirmed a Court of Appeal finding that the court should respect the effect of an exclusive jurisdiction clause in bankruptcy proceedings, just as it does in ordinary civil actions.

中伦观点

引言

在执行案件中，多个债权人争夺同一被执行人财产的情形并不罕见。在“僧多粥少”的情况下，债权人能否分配到财产以及能分配到多少财产往往取决于债权人是否采取了恰当的措施。由于执行相关法律法规较为繁杂，为了更好地阐述法律观点，本文我们将通过一个真实案件改编的模拟案例对执行程序中财产分配涉及实务问题逐一展开分析。

模拟案例引入

2018年，甲公司向乙公司出借2亿元用于经营，双方签订《抵押合同》约定乙公司将其名下A和B两处不动产抵押给甲公司，抵押范围包括乙公司欠甲公司的借款本金、利息及实现债权的费用。双方办理了抵押登记。因种种原因，两处不动产的登记簿登记显示抵押的债权数额分别为1000万元。后因乙公司无法到期偿还借款，甲公司向Y市法院起诉要求乙公司返回借款本金、利息及实现债权的费用并同时申请查分了乙公司名下C、D和E三处不动产。Y市法院判决乙公司偿还上述所有款项。