Disputes between directors often arise because of, and/or result in, disputes about company money. Directors need to be alert to how they are required to act, particularly in times of conflict. Section 172 of the Companies Act 2006 imposes a broad duty on directors to promote the success of the company however the term “success” is unhelpfully uncertain, especially where the company is in difficulty and/or where the company is wound up.
The UK government has published new draft regulations to require mandatory scrutiny of administration sales to connected parties (such as the insolvent company’s existing directors or shareholders).
In the UK, a "pre-pack" is an arrangement under which the sale of all or part of a company’s business or assets is agreed with a purchaser prior to the appointment of administrators. The sale is carried out by the administrators immediately on, or shortly after, their appointment. Administrators must be licensed insolvency practitioners.
一直以来，香港的公司清盘制度均欠缺法定企业拯救程序，因此，陷入财政困难的公司只能透 过以下途径拯救其业务：(i) 与主要债权人透过非法定途径就重组债务达成共识，或 (ii) 根据香 港法例第 622 章《公司条例》进行债务偿还安排计划。然而，上述两个途径均有很多问题，例 如费用高昂、不切实际、欠缺弹性和繁琐费时。
今年较早时候，香港政府宣布重启企业拯救条例草案，在香港推行（其中包括）法定的企业拯 救程序。《公司（企业拯救）条例草案》（「条例草案」）旨在与国际惯例及标准接轨。下文 将概述最新的立法建议。
发起临时监管
根据条例草案，已经或很大机会变为无力偿债的公司，可以发起企业拯救程序，委任一名独立 的第三方专业人士（必须为注册会计师或律师）为临时监管人。临时监管人会在暂止期（亦称 为临时监管期，建议为期 45 个办公日）内担任公司的代理人。在暂止期内，公司将以持续经 营形式继续经营下去，而临时监管人会订定拯救方案（称为「自愿偿债安排」），在临时监管 期结束后的债权人会议上审议。债权人将藉由决议案决定是否批准自愿偿债安排建议；如获批 准，自愿偿债安排将由临时监管人监管实施。
法定暂止期
The Australian government has taken swift action to enact new legislation that significantly changes the insolvency laws relevant to all business as a result of the ongoing developments related to COVID-1
As noted in our previous Perspectives Article, in March 2020, the UK Government announced the suspension of the wrongful trading provisions contained in s.214 of the Insolvency Act 1986.
Has COVID-19 encouraged you to reconsider your outsourcing needs? If so, it might be time to quarantine your outsourcing agreements and give them a health check. Below we have tracked-and-traced a list of considerations to help you to isolate any potential areas in those agreements that may need sanitising.
Earlier this year the UK Government introduced a number of temporary measures intended to avoid large scale insolvencies across the country. One of these measures was the suspension of wrongful trading liability.
This suspension was in place until September 30, 2020. Most of the other temporary measures were extended (e.g. the effective suspension of winding up petitions by creditors has been extended until December 31, 2020) but the suspension of wrongful trading liability was not extended.
Alongside the permanent reforms to English insolvency law introduced by the Corporate Insolvency and Governance Act 2020, the government introduced a temporary suspension of certain provisions of the Insolvency Act 1986 (the IA) to address the economic turbulence caused by the COVID-19 pandemic.
If in your position as director you allow your company to operate while insolvent and unable to pay debts, you could be liable to serious penalties.
The Australian Securities and Investments Commission (ASIC) outlines key considerations for directors whose companies are in financial difficulty or are insolvent.
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