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.”

债务重组作为困境企业的有效救济路径，本质是债权人与债务人通过制定债务重组方案的方式，就债权债务重新做出安排。而在实践中，债务重组方案的执行情况往往是由方案本身的可行性、方案执行过程中的管理与实时协调、方案实施的弹性空间等多个方面决定的。本文将从这几个方面作简要分析，提出一定思考与借鉴。

一、关于债务重组

现阶段，国内尚未建立起完整的调整企业债务重组行为的法律规范，对于“债务重组”的释义，主要出现在会计及税务层面。根据《企业会计准则第12号——债务重组》的相关规定，债务重组是指在不改变交易对手方的情况下，经债权人和债务人协定或法院裁定，就清偿债务的时间、金额或方式等重新达成协议的交易。而根据《关于企业重组业务企业所得税处理若干问题的通知》（财税〔2009年〕59号）规定，债务重组是在债务人发生财务困难的情况下，债权人按照其与债务人达成的书面协议或者法院裁定书，就其对债务人的债务做出让步，通过重组以优化企业资产质量，从而实现资产价值的提升并获得收益的行为。

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.

A Hong Kong court has rejected a bid to force liquidators to provide information and documents regarding their plans and strategies on related litigation as well as information on legal costs and funding arrangements.

New statutory provisions have come into effect that will modernise the way documents are filed with the Official Receiver in Hong Kong. The changes, which took place on the last working day of 2023, pave the way for the electronic submission of certain documents to the Official Receiver's Office (ORO) and dispense with the mandatory newspaper advertising of some statements and notices, which going forward will only require publication in the Gazette or other specified means.

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

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.

The Singapore High Court has again confirmed that a winding-up application concerning a disputed debt that is subject to an arbitration agreement will be dismissed if the arbitration agreement is prima facie valid and covers the dispute. This prima facie standard of review was first formulated three years ago by the Singapore Court of Appeal in AnAn Group (Singapore) Pte Ltd v VTB Bank (Public Joint Stock Company) [2020] SCGA 33.