“…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.
Tolstoy warned that “if you look for perfection, you’ll never be content”; but Tolstoy wasn’t a bankruptcy lawyer. In the world of secured lending, perfection is paramount. A secured lender that has not properly perfected its lien can lose its collateral and end up with unsecured status if its borrower files bankruptcy.
Judge Swain’s decision in the PROMESA Title III bankruptcy proceeding of the Puerto Rico Highways and Transportation Authority (“PRHTA”) that a federal bankruptcy court cannot compel a municipal debtor to apply special revenues to post-petition debt service payments on special revenue bonds has generated controversy and caused some market participants to question whether, if the decision is upheld by the First Circuit on appeal, the perception that special revenue bonds have special rights in bankruptcy remains justified.
The linked Mintz Levin client advisory discusses a recent Third Circuit Court of Appeals ruling that held a “make-whole” optional redemption premium to be due upon a refinancing of corporate debt following its automatic acceleration upon bankruptcy.
Today’s U.S. Supreme Court decision in Commonwealth of Puerto Rico v. Franklin California Tax-Free Trustputs an end to one of Puerto Rico’s multi-pronged efforts to deleverage itself.
A few thoughts on Tuesday’s oral arguments before the U.S. Supreme Court in the litigation over whether Puerto Rico’s Public Corporations Debt Enforcement and Recovery Act, an insolvency statute for certain of its government instrumentalities, is void, as the lower federal courts held, under Section 903 of the U.S. Bankruptcy Code:
A draft of the U.S. Treasury’s proposed debt restructuring legislation began circulating earlier today. The draft legislation would give Puerto Rico, as well as other U.S. territories, and their municipalities access to U.S. bankruptcy court under a new chapter of the U.S. Bankruptcy Code (so-called “Super Chapter 9”) as well as making Puerto Rico’s instrumentalities (but not Puerto Rico itself) potentially eligible to file for bankruptcy under existing Chapter 9.
It is said that muddy water is best cleared by leaving it be. The Supreme Court’s December 4 decision to review the legality of Puerto Rico’s local bankruptcy law, the Recovery Act, despite a well-reasoned First Circuit Court of Appeals opinion affirming the U.S. District Court in San Juan’s decision voiding the Recovery Act on the grounds that it conflicts with Section 903 of the U.S. Bankruptcy Code, suggests, at a minimum, that at least four of the Justices deemed the questions raised too interesting to let the First Circuit have the last word.