As practitioners we pour over notices of intention to appoint (NOIA) and notices of appointment of administrators (NOA) to make sure every detail is accurate. Why? Because no one wants to risk an invalid appointment because there was a minor mistake or error that was overlooked. Understandably errors occur, particularly when the appointment of administrators often happens at speed, with all parties inevitably juggling many balls. Prescribed information may have been missed, or incorrectly stated and procedural steps may have been inadvertently forgotten.

Hong Kong is a common law jurisdiction, and its legal system is based on English law. Following Hong Kong’s handover to China on 1 July 1997, the Basic Law of Hong Kong is the constitutional document of the Hong Kong Special Administrative Region. Article 8 of the Basic Law provides that: “laws previously in force in Hong Kong, that is, the common law, rules of equity, ordinances, subordinate legislation and customary law shall be maintained, except for any that contravene [the Basic Law], and subject to any amendment by the legislature of the Hong Kong Special Administrative Region.”

The recent Privy Council decision in Sian Participation Corp (In Liquidation) v Halimeda International Ltd[2024] (SPC) has overturned a principle of English law relating to the interaction between a contractual agreement to arbitrate and traditional insolvency measures where a debt is said to be disputed without substantial grounds.

The bankruptcy court presiding over the FTX Trading bankruptcy last month issued a memorandum opinion addressing valuation of cryptocurrency-based claims and how to “calculate a reasonable discount to be applied to the Petition Date market price” for certain cryptocurrency tokens.

10 years after the publication of Revision 6 (2014 edition) of the Model Form of Contract for the design, supply and installation of electrical, electronic and mechanical plant (MF/1), the Institution of Engineering and Technology (IET) has released Revision 7 (2024 edition), shortly followed by an erratum containing a summary of corrections.

Regular users of the MF/1 may be comforted to know that the risk profile of the contract has not changed though the door has been opened to extending the duration of liability for latent defects, as discussed below.

For those that are that way inclined (which includes us at #SPBRestructuring!), the 500 plus page Wright v Chappell judgment which sets out the BHS wrongful trading claim against its former directors makes for an interesting read. It paints a colourful picture of the downfall of the BHS group, from the point that it was sold for £1 to its eventual demise into administration and then liquidation. You can make your own mind up about the characters involved, but the story is a sorry one, with creditors ultimately suffering the most.

The Privy Council has recently delivered a landmark judgment on the interplay between arbitration agreements and winding up petitions. The Board held that the English case of Salford Estates (No 2) Ltd v Altomart Ltd [2014] EWCA Civ 1575; Ch 589, which had adopted a pro-arbitration approach to stay or dismiss winding up petitions based on debts covered by arbitration agreements, even if the debts were not genuinely disputed on substantial grounds was wrongly decided.

Another groundbreaking judgment from the ADGM Courts in the NMC matter 📢🇦🇪👨🏻⚖️ and another example of the ADGM Courts drawing important parallels between ADGM and English law.

English proceedings re NMC Health Plc are also ongoing. In his judgment at CFI on 8 July 2024, Sir Justice Andrew Smith found that:

1. The ADGM Courts can make an order in respect of the fraudulent carrying on of the business of a company prior to the time at which that company was continued in the ADGM.

File your proof of claim before the bar date. That’s a principle every creditor in a bankruptcy case should adhere by. But on June 7, 2024, the United States Bankruptcy Court for the Southern District of New York may have increased the degree of diligence parties need to conduct to determine whether they are a potential creditor in a case and therefore required to file a proof of claim.

Introduction

What happens when monies are loaned for a specific purpose but that purpose fails? Should those monies fall within the general assets of the recipient upon bankruptcy or insolvency?