簡介

2020 年 11 月 12 日，破產管理署發出 2020 年第 2 號通告，當中載列關於臨時清盤人或清盤 人向破產管理署署長提交表格 D1 及 D2 的經修訂安排（「通告」）。臨時清盤人／清盤人 （統稱「清盤人」）如知悉董事有任何不當行為操守，須向破產管理署署長提交法定表格 D1。通告將於 2020 年 12 月 1 日生效。

現有安排

如無力償債公司的清盤人認為現任或前任董事的行為操守（不論單獨觀之或連同其作為任何其 他公司的董事的行為操守觀之）使該人不適宜關涉公司的管理，則須填妥香港法例第 32J 章 《公司（董事行為操守報告）規例》附表內的表格 D1，向破產管理署署長報告有關事宜。

破產管理署署長在收到上述報告後，如信納符合公眾利益，可根據香港法例第 32 章《公司 （清盤及雜項條文）條例》第 168I 條向法院申請針對任何現時或曾經出任無力償債公司董事 的人士發出取消資格令。

清盤人如認為前任或現任董事的行為操守不適宜公司的管理，即可援引報告規定。該規定同樣 適用於公司成員自動清盤的情況。

新安排

Introduction 

On 12 November 2020, the Official Receiver's Office ("ORO") issued Circular No. 2 / 2020 setting out the revised arrangement on submission of Form D1 and Form D2 by provisional liquidators or liquidators to the Official Receiver ("Circular"). Provisional liquidators / liquidators ("Liquidators") are required to submit a statutory Form D1 to the ORO when they become aware of any unfit conduct of a director. The Circular takes effect from 1 December 2020.

Hong Kong's insolvency system is famous for its lack of statutory corporate rescue procedure ("CRP"). Owing to the lack of CRP, financially distressed companies may only recourse to rescue their business with (i) a non-statutory consensual agreement with major creditors to restructure debts, or (ii) a scheme of arrangement under the Companies Ordinance (Cap. 622). These options, however, have many problems such as being expensive, impracticable, inflexible and tedious.

1 November 2020 ONC Corporate Disputes and Insolvency Quarterly Dear Clients and Friends, This special newsletter aims to regularly update practitioners on important and noteworthy cases in the areas of corporate disputes and insolvency in Hong Kong, the UK and other common law jurisdictions. We would also seek to give alert on important legislative and regulatory initiatives from Hong Kong.

Introduction 

Section 209(1) of the Companies (Winding Up and Miscellaneous Provisions) Ordinance (Cap. 32) empowers the Hong Kong court to make an order staying the winding-up proceedings after the winding-up order is made upon the application of, among others, a contributory. However, in the case of Safe Castle Limited v China Silver Asset Management (Hong Kong) Limited [2020] HKCFI 1028, Harris J made it clear that the court will be reluctant to exercise its discretion to stay a winding-up order pending appeal.

Introduction

The US Court of Appeals for the Tenth Circuit has ruled that proceeds from property that was fraudulently transferred cannot be recovered under Section 550 of the Bankruptcy Code.[1] This decision limits a subsequent recipient’s exposure where the initial transferee of the property had altered the form of the property that was initially received prior to transferring it to that subsequent recipient.

The Main Street Lending Program is designed to help companies that were in sound financial condition prior to the COVID-19 pandemic to maintain their operations and payroll until conditions normalize. This White Paper gives a broad understanding of the program’s terms and implications by delving into the key questions that market participants are likely to have about the program and addressing the latest changes implemented in the final legal forms and agreements. 

The Corporate Insolvency and Governance (CIG) Act 2020, which was enacted on 25 June 2020, introduces a number of permanent changes to the insolvency and restructuring framework in the United Kingdom, some of which have specific ramifications for the aviation sector. Crucially, the moratorium provisions in the CIG Act do not displace the protections afforded to creditors who have registered their interests under the Cape Town Convention.

Corporate Insolvency and Governance Act: Key Features

Three key features of the CIG Act 2020 are:

The Corporate Insolvency and Governance Act 2020 came into effect in the United Kingdom on 26 June 2020. It makes major changes to UK insolvency law. The full extent of those changes will only become apparent in the following months, as the courts and insolvency practitioners grapple with its 254 pages. Three strange aspects of the Act will fundamentally affect how financings to UK companies are structured and documented.