簡介

2020 年 11 月 12 日，破產管理署發出 2020 年第 2 號通告，當中載列關於臨時清盤人或清盤 人向破產管理署署長提交表格 D1 及 D2 的經修訂安排（「通告」）。臨時清盤人／清盤人 （統稱「清盤人」）如知悉董事有任何不當行為操守，須向破產管理署署長提交法定表格 D1。通告將於 2020 年 12 月 1 日生效。

現有安排

如無力償債公司的清盤人認為現任或前任董事的行為操守（不論單獨觀之或連同其作為任何其 他公司的董事的行為操守觀之）使該人不適宜關涉公司的管理，則須填妥香港法例第 32J 章 《公司（董事行為操守報告）規例》附表內的表格 D1，向破產管理署署長報告有關事宜。

破產管理署署長在收到上述報告後，如信納符合公眾利益，可根據香港法例第 32 章《公司 （清盤及雜項條文）條例》第 168I 條向法院申請針對任何現時或曾經出任無力償債公司董事 的人士發出取消資格令。

清盤人如認為前任或現任董事的行為操守不適宜公司的管理，即可援引報告規定。該規定同樣 適用於公司成員自動清盤的情況。

新安排

Introduction 

On 12 November 2020, the Official Receiver's Office ("ORO") issued Circular No. 2 / 2020 setting out the revised arrangement on submission of Form D1 and Form D2 by provisional liquidators or liquidators to the Official Receiver ("Circular"). Provisional liquidators / liquidators ("Liquidators") are required to submit a statutory Form D1 to the ORO when they become aware of any unfit conduct of a director. The Circular takes effect from 1 December 2020.

Hong Kong's insolvency system is famous for its lack of statutory corporate rescue procedure ("CRP"). Owing to the lack of CRP, financially distressed companies may only recourse to rescue their business with (i) a non-statutory consensual agreement with major creditors to restructure debts, or (ii) a scheme of arrangement under the Companies Ordinance (Cap. 622). These options, however, have many problems such as being expensive, impracticable, inflexible and tedious.

Introduction 

Section 209(1) of the Companies (Winding Up and Miscellaneous Provisions) Ordinance (Cap. 32) empowers the Hong Kong court to make an order staying the winding-up proceedings after the winding-up order is made upon the application of, among others, a contributory. However, in the case of Safe Castle Limited v China Silver Asset Management (Hong Kong) Limited [2020] HKCFI 1028, Harris J made it clear that the court will be reluctant to exercise its discretion to stay a winding-up order pending appeal.

Introduction

Introduction

Introduction

On 28 March 2020, the UK Government announced upcoming insolvency law reforms in response to Covid-19, intended to help companies and directors.

On 23 April 2020, the UK Government announced further measures to protect the UK high street from aggressive rent collection by prohibiting the use of statutory demands and winding up petitions to collect rent which was unpaid due to difficulties caused by Covid-19. However, at the time, it was unclear from the announcement as to whether these prohibitions would extend beyond unpaid rent to other debts.

Introduction

Speed read

1. The British government has commenced an airline insolvency review, in the wake of recent high profile airline failures such as Monarch and Air Berlin, and on the premise that changes in the industry have outpaced protection regimes.

2. The review will focus on two main areas: repatriation of stranded passengers and redress for consumers. There is a desire to minimise repatriation costs falling on the public purse and ensure that consumers have clear avenues of redress.

On 12 December 2017, creditors in the long running special administration of failed stockbroking firm, MF Global UK Limited (“MF Global”), approved a company voluntary arrangement (“CVA”). This case demonstrates the flexibility of the CVA procedure and the role it can play in complex financial services cases.

What is a CVA?