Hong Kong Court refuses to grant an antisuit injunction to stay a winding-up petition where an arbitration agreement existed
21 August 2020
The Hong Kong Court of First Instance has dismissed an application by a British Virgin Islands (BVI) company (C) for an interim anti-suit injunction against proceedings commenced by a Cayman Islands company (D) for the winding-up of the BVI company in the High Court of the BVI.
Hong Kong Court refuses to grant an antisuit injunction to stay a winding-up petition where an arbitration agreement existed
19 August 2020
The Hong Kong Court of First Instance has dismissed an application by a British Virgin Islands (BVI) company (C) for an interim anti-suit injunction against proceedings commenced by a Cayman Islands company (D) for the winding-up of the BVI company in the High Court of the BVI.
The Second Circuit ruled last week in Lehman Bros. Special Fin. Inc. v. Bank of Am. Nat'l Ass'n, No. 18-1079 (2d Cir. 2020) that a Lehman Brothers affiliate cannot claw back $1 billion in payments made pursuant to swap agreements that were terminated when Lehman Brothers Holdings Inc. (“LBHI”) and certain of its affiliates filed for bankruptcy in 2008. The panel concluded that the Bankruptcy Code provides a safe harbor for the liquidation of such swap agreements and also the distribution of proceeds from the collateral.
In a recent judgment, the Hong Kong Court reiterated the principles outlined in Kam Leung Sui Kwan v. Kam Kwan Lai [2015] 18 HKCFAR 501 (Yung Kee), the case concerning the famous roastgoose restaurant in the heart of Hong Kong's Central district, when determining whether to exercise its discretion to wind up a foreign-incorporated company. In this case, the court also refused to grant a stay of the petition in favor of arbitration.
Florida escape
The Singapore High Court has recently granted recognition to Hong Kong liquidation proceedings and liquidators for the first time under Singapore's enactment of the United Nations Commission on International Trade Law Model Law on Cross Border Insolvency (the model law).
GOVERNANCE & SECURITIES LAW FOCUS
JULY 2020/LATIN AMERICA EDITION
Below is a summary of the main developments in U.S., EU, and U.K. corporate governance and securities law since our last update in May 2020.
See our page dedicated to the latest financial regulatory developments.
IN THIS ISSUE
Does an arbitration agreement protect a
debtor from the threat of liquidation?
27 July 2020
GOVERNANCE & SECURITIES LAW FOCUS
JULY 2020/EUROPE EDITION
Below is a summary of the main developments in U.S., EU, U.K. and Italian corporate governance and securities law since our last update in April 2020.
See our page dedicated to the latest financial regulatory developments.
IN THIS ISSUE
In several Commonwealth jurisdictions, the corporate legislation allows creditors to petition a court to order the winding up of a debtor in circumstances where that debtor is unable to pay its debts as they fall due. Such legislation generally presumes that the debtor is insolvent if it has failed to comply with a statutory notice requiring the debtor to pay a certain debt within a given period of time (a statutory demand).
UK CORPORATE INSOLVENCY AND GOVERNANCE ACT 2020
9 JULY 2020
IN THIS ISSUE:
Permanent Insolvency Changes A New Standalone Moratorium A New Restructuring Plan Ipso Facto Termination Clauses
Temporary Insolvency Changes Modification of Wrongful Trading Liability Statutory Demands Winding Up Petitions Winding Up Orders
Further Changes
Governance Changes Company Meetings Company Filings
Final Thoughts