More than a third of the world’s population is under lockdown to slow the spread of COVID-19. The virus and these responsive measures have heavily disrupted lives, communities, and healthcare systems. Many businesses have been forced to change their operations. COVID-19 is rapidly pushing companies to operate in new ways, and the resilience of systems is being tested as never before.
In Ltd [2020] HKCFI 311, the Hong Kong Court of First Instance declined to dismiss a winding-up petition where a debtor was unable to show the existence of a bona fide dispute on substantial grounds, notwithstanding the presence of an arbitration clause in the underlying contract.
Background Facts
Recent decisions of the Hong Kong and Singapore courts show different approaches to the issue of when a winding-up petition will be allowed to proceed in circumstances where there is an arbitration agreement.
A Singaporean Court in Anan Group (Singapore) PTE Ltd v VTB Bank (Public Joint Stock Company) [2020] SGCA 33 has recently confirmed the Court’s approach in assessing arbitration clauses when an application has been brought to put a company into liquidation.
The parties in this case are parties to an arbitration agreement. The respondent applied to put the appellant into liquidation. The Court considered that the winding up proceeding should be stayed with the underlying dispute to be resolved through arbitration.
The insolvency systems for companies and other legal entities vary from country to country. The main purpose of insolvency legislation, however, is fundamentally the same worldwide. If there is important value in the business, we need to protect it in order for the company to continue as a viable business and pay creditors. If the liquidation value is higher than the operational value, jurisdictions have liquidation mechanisms that allow companies to efficiently exit the market and pay creditors through an ordered sale of assets.
Even with the fiscal stimulus and other measures taken by the Federal and State governments in Australia, corporate insolvencies are likely to increase in coming months.
Under Australia’s insolvency regimes, a distressed company may be subject to voluntary administration, creditor’s voluntary winding up or court ordered winding up (collectively, an external administration). Each of these processes raises different issues for the commencement and continuation of court and arbitration proceedings.
Preparation of financial statements and corporate income tax, recommencement of time periods, remote trials, gradual return to workplaces, insolvency proceedings and compliance with criminal law
(This article was published in the May 2020 Issue of Hong Kong Lawyer: http://www.hk-lawyer.org/sites/default/files/e-magazines/HKL-MAY-2020/viewer/desktop/index.html?doc=917CC81E9107138E6C05E7B46F3C9397#page/30)
(本文章发表于2020年5月的《香港律师》杂志上：http://www.hk-lawyer.org/sites/default/files/e-magazines/HKL-MAY-2020/viewer/desktop/index.html?doc=917CC81E9107138E6C05E7B46F3C9397#page/34)
法庭该如何处理就仅基于指称债务（其为某仲裁条款之标的事项）而提出的清盘呈请呢？仲裁条款与清盘呈请之间的相互作用，导致近期普通法司法管辖区中出现互相矛盾的判决。尽管普遍接受的是，清盘法律程序不具可仲裁性，因此不存在因仲裁而自动、强制性或非酌情地搁置对清盘法律程序，但当以酌情权决定涉及仲裁条款的清盘法律程序应否予以搁置或撤销时，不同普通法司法管辖区法院却采纳了不同的方案。具体而言，该等不同方案是：
One of the largest bankruptcy orders ever made in the English courts (in the region of £870 million) has been set aside to allow a creditors’ meeting to take place in order to consider an individual voluntary arrangement. In (1)Gertner (2) Laser Trust v CFL Finance Ltd [2020] EWHC 1241 (Ch), Mr Justice Marcus Smith has held that unless a breach of the good faith rule can be established, it is inappropriate for the court to refuse an application supported by a majority of creditors to stay a bankruptcy petition.