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.”

在当前的投融资环境下，国资背景的投资方常常承担着地方政府的返投任务，对被投企业的注册地点存在特定诉求，因此，若被投企业未注册在此类投资方期待的特定地区，则投资方可能会要求被投企业迁址以实现当地的招商引资。市场上已出现部分项目的投资方以此作为投资交割的前提条件。

优质企业无疑都是各地的“心头肉”，能为当地带来税收效益、工作岗位等。因此，企业的迁出之路可能面临迁出地政府“不放手”、迁出和迁入程序衔接不顺畅等一系列疑难问题，可能拉长迁址进度，甚至实质上无法最终完成迁址。

为协助企业顺利实现“迁址”目的，我们在相关交易中对企业迁址的命题进行重新思考和思路转换。事实上，除了直接变更注册地址，企业也可考虑通过股权重组进行股权结构的调整，以满足投资方对于变更融资主体及后续上市主体所在地的需求。但此等“重组式迁址”也并非一路坦途，如有不慎，同样可能面临法律和税务的障碍和风险，因此需要提前对这类重组交易进行审慎考量和规划。

一、直接迁址的障碍和难点

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.