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.

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.

引言

在香港、中国内地和台湾等司法管辖区运营的家族企业，通常会把企业的实益拥有权和控制权置于英属维尔京群岛（下称“BVI”）注册成立的公司股东名下。受惠于 BVI 公司隐私法的相关优势及其对高净值个人和家族的特殊吸引力，整个企业的实益拥有权甚至能位于国际业务结构顶端的 BVI 控股公司（下称“BVI 控股公司”）发行的股份。

从遗产规划的角度来看，为了确保企业由家族或高净值个人保留控制，企业的融资方式通常是通过股东或几个主要股东向企业提供贷款。如果企业多年来的融资方式一直是 BVI 控股公司获提供的贷款，那么该 BVI 公司欠下的债务总额很有可能相当庞大。一旦贷款人去世便会产生一系列问题，例如死者能否追讨 BVI 公司欠下的债务、追讨申请的正确诉讼地等。

本文将厘清上述部分问题，并分享康德明对于已故个人代表在 BVI 追讨债务的一些指引。