有关Kaoru Takamatsu – [2019] HKCFI 802一案 (判决日期2019年3月25日)

香港法庭首次认可日本清盘程序，并向日本法庭委任的破产管理人提供援助。

背景介绍

于2018年3月1日，东京地区裁判法院民事诉讼第20支部向Japan Life Co, Ltd (以下简称“Japan Life”) 颁发清盘令，并委任Kaoru Takamatsu先生为破产管理人。

Takamatsu先生需要获取Japan Life在瑞穗银行及汇丰银行的香港分行所持有的银行账户记录。于是，Takamatsu先生寻求香港法庭的认可和援助，以获得该账户的记录，并处理Japan Life在香港的相关事务。

判定和原则

Under the 1992 ISDA Master Agreement, following an event of default, there is either an automatic termination or the non-defaulting party can serve a notice designating an Early Termination Date. There then has to be a determination by the non-defaulting party of the compensation that is owed by one party or the other. This is done by closing out the transactions, which involves determining gains or losses in replacing or providing the economic equivalent of the terminated transactions. Once that is done, a statement is served setting out the calculations.

Welcome to this month's edition of our commercial and tech update, covering a wide range of topics from Facebook's lacklustre approach in dealing with IP infringement to further confirmation on the Courts' approach to liquidated damages.

(Mis)Adventures in advertising

Can a profit-sharing provision in a commercial lease survive assumption and assignment by a debtor? Analyzing such a provision, the Third Circuit answered “no,” finding the provision to constitute an unenforceable anti-assignment provision. Haggen Holdings, LLC v. Antone Corp, 739 Fed. Appx. 153 (2018).

Legal and Factual Background

Equitable mootness is a judicially created doctrine often applied in appeals from orders of bankruptcy courts confirming chapter 11 plans of reorganization. In instances where granting relief on appeal would result in overturning the confirmation order and therefore unravelling a substantially consummated chapter 11 plan, appellate courts have, in certain circumstances, abstained from deciding appeals in reliance on equitable mootness.

After Energy Future Holdings (EFH), maybe not so much. The size of the break-up fee approved by the bankruptcy court in EFH was undoubtedly large by any account – US$275 million. But it was approved following all necessary filings, notice and hearings. All parties and counsel involved were highly sophisticated and experienced. The court that approved the fee was the Delaware bankruptcy court, by all accounts one of the most experienced and sophisticated bankruptcy courts in the nation. And there wasn’t even a hint of fraud, misrepresentation or failure to disclose material facts.

Shareholder of a Korean corporation (“Cuzco Korea”), the sole member of a chapter 11 limited liability company debtor (“Cuzco USA” or the “Debtor”), brought an adversary proceeding against the Debtor and others, asserting claims directly, derivatively on behalf of Cuzco Korea and “double derivatively” on behalf of the Debtor. On the defendants’ motion to dismiss, the bankruptcy court for the district of Hawaii was required to consider the impact of Korean law on the derivative claims as well as notions of forum non conveniens.

In a decision widely anticipated by investors in emerging market and distressed debt, the Court of Appeal has upheld the decision of the High Court to refuse to grant an indefinite moratorium on claims under certain English law debts under the Cross Border Insolvency Rules (“CBIR”). In doing so, the Court of Appeal has reaffirmed a long-standing principle of English common law that provides important protection to creditors; known as the Rule in Gibbs, the rule provides that a debt may only be discharged according to its own governing law.

Welcome to the inaugural edition of 'Going concerns', in which we strive to bring you the latest updates on restructuring and insolvency law. For this issue, we focus on Singapore and provide:

The Bankruptcy Court for the District of Delaware recently held in In re Woodbridge Group of Companies, LLC that while Rule 3001 of the Bankruptcy Code provides a mechanism for transfers of claims, Rule 3001 is not a substantive provision allowing claims trading for notes with legally valid anti-assignment provisions.

Background