Public policy, “No-Action” and arbitration clauses, and the substitution of petitioners
Background
Bonds that are traded via clearing houses, such as Euroclear and Clearstream, often contain terms providing that there will be a trustee for the issue, who may be appointed by the participants in the relevant clearing system or by the beneficial owners.
Correcting a widespread mistake, Mr Justice Harris in Re China Ocean Industry Group Ltd [2021] HKCFI 247 held that the Court has no jurisdiction to make a validation order after a winding-up petition in respect of the issue of new shares and convertible bonds (“CBs”).
The correct position is that a company subject to a winding-up petition may issue new shares and CBs without a validation order.
Background to the widespread mistake and the present case
In the landmark case of Re China Huiyuan Juice Group Limited [2020] HKCFI 2940, Mr Justice Harris recalibrated the Hong Kong winding-up jurisdiction and its application to an offshore incorporated, Hong Kong-listed entity.
In particular, the decision explains why the Hong Kong court may be unable to wind up an offshore incorporated, Hong Kong-listed company where all of the company’s operating assets are in the Mainland.
The material facts
In late June 2020, the UK’s Corporate Insolvency and Governance Act (the Act) became law.1
In recent years, it has become increasingly common for companies seeking to avoid an immediate winding-up order, particularly listed companies, to pray in aid of alleged efforts to restructure its debts in a bid to obtain adjournments of a winding up petition.
Often in winding-up petitions, contributories of the company, for one reason or another, may wish to oppose the winding-up petition in their own right, including by filing evidence and making submissions at hearings. One major concern a contributory may have in deciding whether to take this course of action is of course the potential costs consequences, especially in the scenario where the opposition is ultimately unsuccessful and the company is wound up.
In Re Ando Credit Limited [2020] HKCFI 2775, the Honourable Mr Justice Harris appointed provisional liquidators over a Hong Kong- incorporated company, in an application that broke ground as the first of its kind, made with the express purpose of seeking recognition in the Mainland.
Op 12 november 2020 heeft de Tweede Kamer het wetsvoorstel tot wijziging van de Tijdelijke wet COVID-19 SZW en JenV (35557) als hamerstuk aangenomen. Vandaag, 24 november 2020, is het wetsvoorstel ook door de Eerste Kamer als hamerstuk afgedaan. Het wetvoorstel maakt het mogelijk (in Hoofdstuk 2 Tijdelijke voorziening betalingsuitstel COVID-19) om de rechter te verzoeken:
A legislative proposal to amend the Temporary Act COVID-19 was adopted by the Dutch parliament on 12 November 2020, and adopted by the Dutch Senate on 24 November 2020. The proposal (the COVID-19 Amendment Act) will enter into force shortly and remain in effect until 1 February 2021. This GT Alert summarizes the measures included in COVID-19 Amendment Act Chapter 2 (Temporary measures for the stay on recovery measures COVID-19).
The COVID-19 Amendment Act provides (in Chapter 2) for the possibility of the debtor requesting that the courts, in connection with the pandemic: