债权人该如何策略追讨欠款及清盘行动

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2022 年 7 月 19 日

关于香港法院就境外公司清盘和承认境外清盘的权力的最新案例

如果呈请人会因提起法院的清盘程序而获益，而不是从颁布清盘令中获益，那么香港法院是否应该对境外公司行使清盘的司法管辖权？香港终审法院（终审法院）近期对这一问题作了阐明¹。

原讼法庭亦阐述了评估是否应承认境外清盘以及是否应向境外委任的清盘人提供协助的正确做法²。

The Court of Final Appeal (the CFA) has recently clarified whether a Hong Kong court should exercise its winding-up jurisdiction over foreign companies if the petitioner would derive benefit from the invocation of the court’s winding-up process but not from the making of a winding-up order [1].

Corporate Update is our fortnightly bulletin highlighting the latest legal and regulatory developments which we consider to be of relevance to in-house corporate counsel.

We consider the implications for office-holder claimants of the recent case ofKelmanson v Gallagher & De Weyer [2022] EWHC 395 (Ch).

The case raises interesting points of practice for insolvency practitioners: a director consciously trying to evade or 'game' the statute won't work to prevent office holder recovery, but a sincerely held but mistaken belief on the director's part as to what was being done doing could.

KEY POINTS:

MR DOLLAR BILL LTD V PERSONS UNKNOWN AND OTHERS [2021] EWHC 2718 (Ch)

Federal Decree Law No (16) of 2021 (Factoring Law) was issued on 29 August 2021 and came into effect on 7 December 2021. The Factoring Law, whilst laying a legislative framework for a rapidly expanding trade finance industry in the United Arab Emirates (UAE), also provided much needed clarity from, and an update to, Federal Law No (4) of 2020 (Moveables Law) and Federal Law No (1) 1987 (Civil Code).

New entrants to the trade finance market

Salem Mohammed Ballama Altamimi & ors v Emirates NBD Bank PJSC, HSBC Bank Middle East Limited, ICICI Bank UK Plc and others [2021] DIFC CFI 085 [1]

In certain sectors, in particular in technology and life sciences, it is common for companies to combine forces in order to maximise business opportunities. Only rarely can a single company undertake every aspect of (for example) invention, development and exploitation by itself. A company may decide to contract out such activities, or to collaborate with a third party with different skills or resources. Such a collaboration may take the form of a joint venture.

According to a recent decision by the High Court in R (on the application of Palmer) v Northern Derbyshire Magistrates Court, an Administrator is an officer of a company in administration for the purpose of collective redundancy rules.

This means an Administrator can be prosecuted personally for failing to notify the Insolvency Service of collective redundancies being made by the company in administration.

Background law

Claims are just another asset of the insolvency practitioner: to gather in and realise for creditors’ benefit.

Success in managing insolvency estate claims however, is all about effective risk management. As a speculative contingent asset, the risks involved in handling claims as assets are greater and this risk requires constant evaluation as the claim progresses. Here are 6 issues to have under control throughout.

1. RECOVERABILITY – WHERE IS THE MONEY?