The impact of an arbitration clause on the Court’s discretion to grant a winding up order was recently considered by the Court of First Instance in Hong Kong.

In Lasmos Limited v Southwest Pacific Bauxite (HK) Limited (HCCW 227/2017; [2018] HKCFI 426), the Court dismissed a winding up petition in view of an arbitration clause contained in the agreement between the parties and held that the dispute concerning the alleged debt should be dealt with in accordance with the arbitration clause.

Facts

Companies in the healthcare industry face many unique challenges when undergoing a bankruptcy, including challenges arising due to the federal and state law framework governing the use and disclosure of medical information. In February 2018, the U.S. Department of Health and Human Services (HHS) announced that it had reached a settlement with the receiver appointed to liquidate the assets of Filefax, Inc., a medical record storage and transportation company, resolving claims against Filefax for potential violations of the Health Insurance Portability and Accountability Act (HIPAA).

The Changwon District Court in South Korea has this afternoon (23 March 2018) issued a comprehensive prohibition order (CPO) following the application of Sungdong Shipbuilding and Marine Engineering Co. Ltd (Sungdong) to enter Chapter 11 Rehabilitation filed earlier this month.

The effect of the CPO is to provisionally prohibit all creditors of the yard from taking legal action in South Korea to secure and enforce their claims by attachment, arrest or foreclosing of their security interests.

Context

As we described in our client alert dated September 14, 2016, in the aftermath of the real estate downturn from 1989 to 1993, when real estate mortgage lenders began to contemplate making new mortgage loans, they sought to create new legal structures to prevent their prospective borrowers from filing for Chapter 11, and to ameliorate the adverse consequences, if such a filing were to occur.

In our client alert dated September 14, 2016, we discussed the decision of the United States Bankruptcy Court for the District of Delaware in In re Intervention Energy Holdings, LLC, which refused to invalidate a bankruptcy filing made without the consent of its lender who held a “Golden Share” as void against federal public policy.

In a recent winding-up case, Discreet Ltd v. Wing Bo Building Construction Co., Ltd [2017] HCCW 49/2017, the Court confirmed that when there is clearly a cross-claim which exceeds the sum claimed by the petitioner, and it is clear that the cross-claim is genuine and based on substantial grounds, the petition can amount to an abuse of process.

Background

Generally speaking, the most appropriate jurisdiction in which to wind up a company is the jurisdiction where the company is incorporated, and the jurisdiction to wind up a foreign company has often been described as exorbitant or as usurping the functions of the courts of the country of incorporation.

The case of Wing Hong Construction Limited v Hui Chi Yung and Ors [2017] HKEC 1173 provides an overview of the legal principles which apply to an application for security for costs, where the Plaintiff against whom security is sought is a company and the application is made under section 905 of the Companies Ordinance (Cap 622). This was an appeal against the decision of a Master who had dismissed the Defendant’s application for security for costs against the Plaintiff which was a private company in liquidation. The appeal was allowed and security for costs of HK$2 million ordered.

In Re Lucky Resources (HK) Ltd [2016] 4 HKLRD 301, Hong Kong’s Court of First Instance had to consider the question of whether an arbitration award could be enforced by winding up the company against which the award had been made, without first applying for leave to enforce the award under section 84 of the Arbitration Ordinance (Cap 609). The Court answered that question in the affirmative.