“…it is fallacious and unrealistic for the Company to assume that the value of the Haitian Shares remained the same from February to August 2019. Between February and August 2019, Haitian Energy had published no less than nine announcements suggest that the financial condition of Haitian Energy was in a state of flux, and that the value of the Haitian Shares was susceptible to fluctuation.”

– William Wong SC (Deputy High Court Judge in Re Victor River Ltd)

INTRODUCTION

引言

在Re China Huiyuan Group Ltd [2020] HKCFI 2940一案中，原訟法庭拒絕對一家在香港上市的開曼公司進行清盤，因為原訟法庭認為，呈請人未能證明在作出清盤令後，債權人確實有可能獲得實際利益。

案情

SDFIII Holdings Limited（以下簡稱「呈請人」）以資不抵債為由，發出對China Huiyuan Juice Group Limited（以下簡稱「該公司」）進行清盤的呈請。各方對該債務沒有爭議。

該公司在開曼群島註冊成立，並在香港聯交所主板上市。該公司的資產包括在英屬處女群島註冊成立的附屬公司的所有權，該等附屬公司在中國內地擁有附屬公司，而該等附屬公司又擁有該公司的相關資產，並開展生產及其他業務。

對該公司無爭議的是，該公司已資不抵債。該公司要求押後該呈請，以推進該公司的債務重組。由於股份已暫停買賣，而該公司亦面臨潛在的退市問題，該公司認為重組是令集團業務重回正軌的唯一方法，長遠而言，對該公司的債權人是有利的。

因此，法院將裁定是否立即發出清盤令或批准延期。

爭議點

爭議點如下：-

Introduction

In Re China Huiyuan Group Ltd [2020] HKCFI 2940, the Court of First Instance declined to wind up a Hong Kong-listed Cayman company as the Court held that the petitioner failed to demonstrate that there was a real possibility of a tangible benefit to creditors upon the making of a winding up order.

Facts

SDF III Holdings Limited (the “Petitioner”) issued a petition to wind-up China Huiyuan Juice Group Limited (the “Company”) on the grounds of insolvency. The debt is not disputed.

 In a decision published October 19, 2020, Judge Frank J. Bailey of the U.S. Bankruptcy Court for the District of Massachusetts found that an Indian tribe was not subject to the Bankruptcy Code’s automatic stay.

It is very common for bankruptcy court orders to provide that the court retains jurisdiction to enforce such orders. Similarly, chapter 11 confirmation orders routinely provide that the bankruptcy court retains jurisdiction over all orders previously entered in the case. The enforceability of these “retention of jurisdiction” provisions, however, will not rest on the plain language in the order but on the bankruptcy court’s statutory jurisdiction.

Pennsylvania’s legislature recently approved House Bill No. 1773, an overhaul to its Municipalities Financial Recovery Act, commonly known as “Act 47.”  HB 1773 was signed into law by Governor Tom Corbett on October 31, 2014.

This is a follow up to our recent blog post discussing then pending Michigan legislation known as the “Local Financial Stability and Choice Act” or Public Act 436 (the “Financial Stability Act”), which will replace Public Act 72 and overhaul Michigan’s emergency manager law.  On December 27, 2012, Michigan Gov. Rick Snyder signed the Financial Stability Act into law.

Detroit’s increasingly distressed financial condition has created a dynamic and rapidly evolving situation where the potential of a Chapter 9 filing appears to be the subject of renewed discussion and legislative attention.  In particular, state legislation providing Detroit a menu of options for addressing its finances appears headed to enactment this month.  Although such legislation includes one option expressly protective of debt service payments on Detroit’s public debt, several of the options may lead to a Chapter 9 filing as a first or last resort. 

The bankruptcy court ruled today that the City of Harrisburg’s Chapter 9 petition filed by the Harrisburg City Council was not specifically authorized under Pennsylvania law.  After extensive briefing from the parties concerning, among other things, the constitutionality of Act 26 – the law passed in June 2011 to prohibit “third class” cities like Harrisburg from filing Chapter 9 -- the court ruled the law was constitutional and prohibited Harrisburg from becoming a Chapter 9 debtor.  The case has been dismissed.