Hong Kong is a common law jurisdiction, and its legal system is based on English law. Following Hong Kong’s handover to China on 1 July 1997, the Basic Law of Hong Kong is the constitutional document of the Hong Kong Special Administrative Region. Article 8 of the Basic Law provides that: “laws previously in force in Hong Kong, that is, the common law, rules of equity, ordinances, subordinate legislation and customary law shall be maintained, except for any that contravene [the Basic Law], and subject to any amendment by the legislature of the Hong Kong Special Administrative Region.”
The Privy Council has recently delivered a landmark judgment on the interplay between arbitration agreements and winding up petitions. The Board held that the English case of Salford Estates (No 2) Ltd v Altomart Ltd [2014] EWCA Civ 1575; Ch 589, which had adopted a pro-arbitration approach to stay or dismiss winding up petitions based on debts covered by arbitration agreements, even if the debts were not genuinely disputed on substantial grounds was wrongly decided.
In a groundbreaking ruling, the Court of Appeal for British Columbia recently delivered a decision that is poised to significantly influence insolvency proceedings. The case, cited as British Columbia v. Peakhill Capital Inc., 2024 BCCA 246, marks the first time an appellate court has addressed the jurisdiction and appropriateness of reverse vesting orders (RVOs) in receivership contexts. This ruling provides crucial insights into the court's reasoning and its implications for legal and non-legal professionals alike.
Background and core issue
A public and competitive process
2023 closed with a significant rise in the number of insolvencies in France. With a total of 56,200 insolvency proceedings (redressement judiciaire and liquidation judiciaire), mainly in the retail sector, the opportunities for taking over a business at the bar of a court are multiplying.
However, these takeovers are governed by a strict timetable and formalities, requiring a thorough understanding of the workings of insolvency law.
When individuals and certain entities (such as partnerships, trusts and other unincorporated bodies) have debts that they are unable to repay to their creditors, they may consider or be faced with bankruptcy, which is known as sequestration in Scotland. However, sequestration is just one avenue. Alternative statutory debt solutions are available, which can provide breathing space and allow debts to be repaid over time, without creditor pressure.
Although the law, rules and procedures governing corporate insolvency in Scotland and England and Wales are similar in many respects, Scotland has a separate legal system and there are some important differences in the provisions and rules applicable north and south of the border. The differences include:
The FCA has now published proposed amendments to its (the IP guidance). Our previous article highlighted the significance of the Consumer Duty in the financial services industry and how firms will need to view customer outcomes and proactively address harm in the retail market.
Digital assets may be new, but existing English insolvency laws and principles can deal with them. So finds the UK Jurisdiction Taskforce (UKJT) in its ‘Legal Statement on Digital Assets and English Insolvency Law’, published this week.
Key takeaways include:
The European Commission has published a new proposal for a Directive that would harmonise certain aspects of insolvency law across the EU. This proposal, following the enactment of Directive (EU) 2019/1023, illustrates a strong desire to facilitate the free movement of capital within Europe. A significant part of the proposed Directive is designed to make laws governing avoidance actions uniform across the EU.
For RSLs who are routinely contracting with housebuilders for golden brick delivery of affordable housing across multiple phases, we discuss the four key actions that can help if the housebuilder becomes insolvent.
1. Pre-Insolvency – Financial Distress Provisions and Due Diligence