In In re Golden Sphinx Ltd., 2023 WL 2823391 (Bankr. C.D. Cal. Mar. 31, 2023), the U.S. Bankruptcy Court for the Central District of California denied a motion filed by a creditor of a chapter 15 debtor seeking discovery from a bank that had provided financing to one of the debtor's affiliates.

There is longstanding controversy concerning the validity of third-party release provisions in non-asbestos trust chapter 11 plans that limit the potential exposure of various non-debtor parties involved in the process of negotiating, implementing and funding a plan. In the latest chapter of this debate, the U.S. Court of Appeals for the Second Circuit handed down a long-awaited ruling regarding the validity of nonconsensual third-party releases in the chapter 11 plan of pharmaceutical company Purdue Pharma, Inc. and its affiliated debtors (collectively, "Purdue").

Exculpation clauses limiting the liability of certain entities for actions taken in connection with a bankruptcy case are a common feature of chapter 11 plans. However, courts disagree over the permitted scope of such clauses. They also disagree as to whether an order confirming a chapter 11 plan that includes exculpation and third-party release provisions is insulated from appellate review under the doctrine of "equitable mootness."

To prevent landlords under long-term real property leases from reaping a windfall for future rent claims at the expense of other creditors, the Bankruptcy Code caps the amount of a landlord's claim against a debtor-tenant for damages "resulting from the termination" of a real property lease.

To shield bankruptcy trustees and certain other entities from litigation arising from actions taken in their official capacity, the "Barton doctrine"—now more than a century old—provides that such litigation may be commenced only with the authority of the appointing court. The doctrine has certain exceptions, one of which—the "ultra vires exception"—was recently examined by the U.S. Court of Appeals for the Fifth Circuit as an apparent matter of first impression.

If any class of creditors under a chapter 11 plan is "impaired," the Bankruptcy Code provides that the plan can be confirmed by the bankruptcy court only if at least one impaired class of non-insider creditors votes to accept the plan. This "impaired class acceptance" requirement—stated in section 1129(a)(10) of the Bankruptcy Code—is straightforward in cases involving a single debtor, or in cases where the bankruptcy estates of several debtors are "substantively consolidated" so that the assets and liabilities of each debtor are deemed to belong to a single consolidated entity.

Corporate restructurings are not always successful for many reasons. As a consequence, the bankruptcy and restructuring laws of the United States and many other countries recognize that a failed restructuring may be followed by a liquidation or winding-up of the company, either through the commencement of a separate liquidation or winding-up proceeding, or by the conversion of the restructuring to a liquidation. Chapter 15 of the Bankruptcy Code expressly contemplates that the status of a recognized foreign proceeding may change, and that a U.S.

Section 363(m) of the Bankruptcy Code provides that the reversal or modification of an order approving a sale or lease of assets in bankruptcy does not affect the validity of the sale or lease to a good-faith purchaser or lessee unless the party challenging the sale or lease obtains a stay pending its appeal of the order.

简介

最近在Re Guy Kwok-Hung Lam [2023] HKCFA 9一案中，香港终审法院澄清，如果受争议的呈请债务所涉及的协议载有专属司法管辖权条款（「专属条款」），法院应如何处理清盘及破产呈请。

案情

上诉人于2017年与CP Global Inc（「该公司」）及答辩人订立了一份信贷及担保协议（「信贷协议」）。据此，上诉人向该公司提供定期贷款，答辩人就该公司结欠上诉人的所有款项提供个人担保。信贷协议载有专属条款，就该协议所产生或与之有关的所有法律程序赋予纽约法院专属司法管辖权。

于2020年，上诉人认为发生了信贷协议所指的违约事件，故要求答辩人支付信贷协议项下的未偿还本金及利息。答辩人未有按上诉人的要求还款，因此上诉人在香港针对答辩人展开破产法律程序。另一方面，答辩人在纽约提起诉讼，请求法院求宣告并无发生信贷协议下的违约事件。

答辩人反对在香港提出破产呈请的主要理由之一，是专属条款规定上诉人须首先在纽约法院就双方争议进行诉讼，然后才可在香港展开破产程序。

Introduction

In the latest judgment handed down by the Hong Kong Court of Final Appeal in Re Guy Kwok-Hung Lam [2023] HKCFA 9, the Court of Final Appeal clarified the approach to winding up and bankruptcy petitions where the agreement from which the disputed petition debt arose contains an exclusive jurisdiction clause (“EJC”).

Facts