PJSC Uralkali v Rowley & Anor [2020] EWHC 3442 (Ch) is about the sale of the Force India F1 racing team, owned and operated by Force India Formula One Team Limited (the “Company”).
The Force India F1 team was more successful on the track than it was financially and by the summer of 2018, the Company was in a precarious financial position. The Company went into administration and appointed joint administrators on 27 July 2018 (the “Joint Administrators”).
对于《最高人民法院关于适用〈中华人民共和国民法典〉有关担保制度的解释》（下称“《民法典担保解释》”或“新规”）对金融资管业务的影响，我们在上篇及中篇中从担保物权受托持有、增信文件性质、上市公司对外担保、担保物权登记、抵押预告登记等角度进行了详细探析。本篇我们将从资产收益权回购交易、仲裁与申请实现担保物权程序、担保与破产衔接角度，着重介绍新规的修订及对金融资管业务的影响。择重点概括如下：
一、新规明确特定资产或资产收益权转让及回购交易中让与担保规则的处理方法
The issue in this case concerned the failure of a holder of a Qualifying Floating Charge (QFC) to give notice to a prior QFC holder before appointing administrators, therefore potentially calling into question the validity of the administration.
The facts of this case were somewhat unusual although it serves as a reminder of the principles involved in the trading of a business by a trustee in bankruptcy.
Background
JMW Solicitors have recently obtained an Order made pursuant to Section 234 of the Insolvency Act 1986 (the “Act”), which includes a term that allows the office-holder to recover possession of a residential property, without the need for separate possession proceedings being issued pursuant to Part 55 of the Civil Procedure Rules (“CPR”), which sets out the usual Court procedure for obtaining an order for possession of land.
引言：近期某集团破产清算案中，关于债务人与境外基金债权人之间因“维好协议”引发的纠纷事项，上海金融法院作出裁定，对境外债权人在香港特别行政区取得的对该债务人的胜诉判决予以认可，鉴此该境外债权人的债权有望在破产程序中获得确认。而其他破产案件中，管理人对境外投资人基于“维好协议”的债权作出不予确认的决定。由此，关于“维好协议”项下的债权人应如何主张权利、在“维好提供方”破产的情况下可否享有破产债权人地位并参与破产程序等问题众说纷纭。为此，本文将从“维好协议”的性质入手，在境内“维好提供方”破产语境下，阐述“维好协议”项下债权人可以主张权利的路径，并分析各救济途径在司法实践中的可行性。
一、“维好协议”的性质分析
（一）何谓“维好协议”
The background facts to this case are relatively straightforward: a group of companies consisting of the parent (‘AIL’) and three subsidiaries (‘the Subsidiaries’) operated in the energy sector.
A lender (‘Junior Creditor’) advanced approximately £39M to AIL, secured by qualifying floating charges (‘QFC’) over AIL and the Subsidiaries. A second lender (‘Senior Creditor’) subsequently lent £5M to AIL secured by a QFC over AIL but not the Subsidiaries.
Twelve creditors (representing about 16% of company debt, and represented by a firm of licensed insolvency practitioners) have failed in an attempt to compel administrators to move to creditors’ voluntary liquidation, alternatively an order for compulsory liquidation. The Creditors also sought the revocation of a proposal ‘purported to have been deemed approved’.
The Company was involved in construction work, falling victim to the Covid-19 pandemic in that it was forced to cease trading following the announcement of lockdown on 23 March 2020.
The Key Issues and Background
The Court of Appeal was asked to consider two key points (together with matters, including relating to the granting of summary judgment) regarding the procedural aspects of applications in insolvency proceedings. The relevant proceedings were issued by the trustees in bankruptcy of Nicola Ide (the “Trustees”).
First, could the County Court transfer part of insolvency proceedings to the High Court?