Under the Euroclear or Clearstream system, companies which issue so-called “global notes” do not have direct contractual relationship(s) with the ultimate beneficial investors in those notes. Rather, the company’s books will show only one registered global note, and only one registered holder of the global note holding the note on behalf of the investors.
As foreshadowed in his decision last month (Nuoxi Capital Ltd & ors v Peking University Founder Group Company Limited[2023] HKCFI 1350 (the “PUFG Case”)), on 15 June 2023, Harris J handed down a second decision on keepwell deeds, this time in relation to US$450,000,000 bonds issued by Tsinghua Unigroup Co., Ltd (“Tsinghua”)’s indirect subsidiary: s
On 15 May 2023 (with Reasons for Decision delivered on 18 May 2023), the Companies Court made a winding-up order against Dangdai International Investments Ltd (當代國際投資有限公司) (“the Company”) which is in turn wholly owned by Wuhan Dangdai Science & Technology Industries (Group) Company Ltd (武漢當代科技產業集團股份有限公司) (“Wuhan Dangdai”).
The Facts – Shortly Stated
在终审法院最新颁布的 Re Guy Kwok-hung Lam[2023] HKCFA 9突破性裁决中,终审法院驳回了该案的上诉,并且在判词中就专属管辖权条款(EJC)是否对提交破产呈请有影响这一棘手问题作出裁决,平息了长期对于相关议题的争论。
简而言之,终审法院认可上诉法院大多数法官对于本案的观点,认为一般来说,如果呈请债务的基础争议受制于专属管辖权条款,除非有其他反面因素存在(例如债务人破产的风险将会影响第三方、债务人的呈请以几乎无意义的争议为基础,或者发生滥用法律程序的情况等), 则法院应驳回该破产呈请。
终审法院在裁定中指出,当只有一名债权人提出破产呈请,而没有证据表明全体债权人都面临风险时,破产制度背后的公共政策因素的重要性则显着降低。
这一裁定反映了法院非常重视当事人自治的原则,以及当事人之间自由达成的协议。该判决将会对破产领域产生深远的影响,以及对处理清算及破产呈请中的仲裁条款产生涟漪效应。
In the latest ground breaking decision in Re Guy Kwok-hung Lam[2023] HKCFA 9, the Court of Final Appeal dismissed the appeal and laid to rest a long-standing debate on the vexing question concerning the impact, if any, exclusive jurisdiction clauses (EJCs) have on the presentation of bankruptcy petitions.
Dispute Resolution analysis: Following a liability trial, an unfair prejudice petition under section 994 of the Companies Act 2006 has been dismissed. None of the alleged instances of unfair prejudice directed against the Respondents was made out.
Pickering v Hughes and ors [2022] EWHC 3359 (Ch)
What are the practical implications of this case?
Dispute Resolution analysis: When the owners and controllers of a company refused to identify the recipient of payments made out of the company during the course of arbitration proceedings, their defence to a claim under section 423 of the Insolvency Act 1986 was struck out and judgment was entered against them.
Integral Petroleum SA v Pretrogat FZE and ors [2023] EWHC 44 (Comm)
What are the practical implications of this case?
Dispute Resolution analysis: A Court, cost-managing a claim under s423 of the Insolvency Act 1986 has strongly criticised the level of anticipated costs reflected in cost budgets and have made an order reflecting the view formed.
Lemos and ors v Church Bay Trust Company Limited [2023] EWHC 157 (Ch)
What are the practical implications of this case?
Dispute Resolution analysis: A large award of damages and/or equitable compensation has been made against the directors and connected companies of a company which was used to perpetrate a large scale labour supply fraud against HMRC.
Umbrella Care Ltd v Nisa and ors [2022] EWHC 3139 (Ch)
What are the practical implications of this case?