Grand Peace Group Holdings Limited [2021] HKCFI 2361 (Date of Decision: 24 August 2021)

Up Energy Development Group Limited [2021] HKCFI 2595 (Date of Decision: 31 August 2021)

Introduction

The vast majority of listed companies in Hong Kong are incorporated offshore, with a corporate structure that the operating and asset owning subsidiaries in Mainland China are held through intermediate subsidiaries incorporated in offshore jurisdictions such as BVI and Cayman Islands etc.

The High Court has, for the first time since the introduction of the legislation in June 2020, refused to sanction a cross-class cram-down restructuring plan under Part 26A of the Companies Act. In In the matter of Hurricane Energy Plc [2021] EWHC 1759 (Ch), the court rejected a plan supported by bondholders because it had not been shown that the opposing shareholders had no better alternative prospects (i.e., the ‘no worse off condition’ had not been met).

Should a claim for appraisal rights brought by a former shareholder of a Chapter 11 debtor be subordinated under Section 510(b) of the Bankruptcy Code? According to the Bankruptcy Court for the District of Delaware, the answer is yes. See In re: RTI Holding Co., LLC, No. 20-12456, 2021 WL 3409802 (Bankr. D. Del. Aug. 4, 2021).

Background

Trillions of dollars of securities are issued on the strength of bankruptcy remoteness and special purpose entities (“SPVs”) intended to be bankruptcy remote. These transactions generally involve hundreds of millions of dollars and investors’ expectations that the SPVs will not be dragged into a potential bankruptcy filing of their non-SPV affiliates.

Samson Paper Company Limited (In Creditors' Voluntary Liquidation) [2021] HKCFI 2151(date of decision: 20 July 2021)

China All Access (Holdings) Limited [2021] HKCFI 1842 (date of decision: 21 June 2021)

Introduction

Introduction¹

In order to obtain a bankruptcy order upon either a creditors', or a bankrupt's own, bankruptcy application, it must be shown that a debtor:

In this edition of the Going concerns, our Stephenson Harwood restructuring and insolvency team provides a brief update on the newest developments in Singapore, UK and Hong Kong. For Singapore, we update on the "conflict" between the admiralty and insolvency regimes while our London team provides an update on the cutting-edge Part 26A restructuring plans. Last but certainly not least, our Hong Kong team dissects and discusses the significance and impact of the new cooperation mechanism for Hong Kong liquidators and Mainland administrators to seek mutual recognition and assistance.

In a recent opinion, the Bankruptcy Court for the District of Maryland dealt with a conflict between the strong presumption in favor of enforcing arbitration agreements and the Bankruptcy Code’s emphasis on centralization of claims. Based on an analysis of the two statutory schemes and their underlying policies and concerns, the Court decided to lift the automatic stay to allow the prepetition arbitration proceeding to go forward with respect to non-core claims.

Background

On 28 June 2021, the English High Court handed down a judgment declining to sanction a restructuring plan proposed by Hurricane Energy PLC, which sought to cram down the dissenting class of shareholders and hand over the control of the company to its bondholders with a debt-for-equity swap diluting the shareholders down to 5% of their existing shareholding. This is the first time that the English court has declined to sanction a restructuring plan (since their introduction almost a year ago in June 2020), and only the fourth time that the cross-class cram down mechanism has been used.

The application of sovereign immunity principles in bankruptcy cases has vexed the courts for decades. The U.S. Supreme Court’s opinions on the matter have not helped much. Although they have addressed the issue in specific contexts, they have not established clear guidelines that the lower courts may apply more generally. The Third Circuit took a crack at clarifying this muddy but important area of the law in the case of Venoco LLC (with its affiliated debtors, the “Debtors”).

Background