This note aims to provide brief and practical answers to common questions on the law of assignment in English law finance transactions.

1. Are all notified assignments legal assignments?

Key Takeaways

Incorporating the principles contained in EU insolvency directives, the new Italian Insolvency Code affirms the goal of resolving crises in the least traumatic way possible for the business. This represents a fundamental innovation of the underlying philosophy of Italian insolvency law and the remedies envisaged for companies in distress so that they may successfully restructure their outstanding exposure. Below, we provide a general overview of the Insolvency Code and its key remedies.

The Insolvency Code in brief

The Corporate Enforcement Authority recently published its guidance note on EU Directive 2019/1023 known as the "Preventive Restructuring Directive", which you will find here (Information Note).

Background

On 5 October 2022, the Supreme Court handed down its long-awaited judgment in BTI 2014 LLC v. Sequana S.A. [2022] UKSC 25 concerning the trigger point at which directors must have regard to the interests of creditors pursuant to s.172(3) of the Companies Act 2006 (the "creditors' interests duty").

The Hong Kong Court has power pursuant to section 327 of the Companies (Winding Up and Miscellaneous Provisions) Ordinance (Cap. 32) to wind up a foreign-incorporated company in Hong Kong. Before the Court can exercise its statutory jurisdiction, the following three well known “core requirements”, cited by the Court of Final Appeal in Kam Leung Siu Kwan v Kam Kwan Lai (2015) 18 HKCFAR 501, must be satisfied:

Since the signing of a record of meeting concerning mutual recognition of and assistance to insolvency proceedings between the courts of Mainland China and Hong Kong in May 2021, there have been a number applications for letters of request to be issued by the Hong Kong Court to the Bankruptcy Court of the Shenzhen Intermediate People’s Court.

Readers will recall, on April 1, 2020 the RF President signed RF Law No. 98-FZ, amending RF Law No. 127-FZ On Insolvency (Bankruptcy) of October 26, 2002 (the Law) and authorising the Government to impose a moratorium on creditors’ initiation of bankruptcies to stabilize the economy in exceptional cases (a Moratorium).

Immediately thereafter, by Decree No. 428 of April 3, 2020 as part of the COVID-19 relief program, the Government adopted such a Moratorium until 7 January 2021 (the COVID Moratorium).

The updated guide provides an overview of the law and general requirements in connection with the establishment and maintenance of Hong Kong private companies and Hong Kong branches of foreign companies. Topics include incorporation of a company, post-incorporation matters and general requirements, registration procedures of a non-Hong Kong company, maintenance of a company, management, taxation and employment visas.

The recent decision of Mr Justice Harris in Nuoxi Capital Ltd v Peking University Founder Group Co Ltd [2021] HKCFI 3817 shows the tension between the Hong Kong’s courts willingness to recognise foreign insolvency proceedings and the contractual rights of creditors who sought to enforce exclusive jurisdiction clauses in favour of Hong Kong.