2022 has been a challenging year. In addition to the continuing impact of COVID-19 and the recent relaxation measures in China, the war in Ukraine has also brought impacts on society, politics and businesses.
On December 5, 2022, in In re Global Cord Blood Corp., 2022 WL 17478530 (Bankr. S.D.N.Y. Dec. 5, 2022) (“Global Cord”), the U.S. Bankruptcy Court for the Southern District of New York (the “Court”) denied recognition of a proceeding pending in the Grand Court of the Cayman Islands (the “Cayman Proceeding” and the court, the “Cayman Court”) because it was more like a corporate governance and fraud remediation effort than a collective proceeding for the purpose of dealing with reorganization or liquidation, as Chapter 15 of the Bankruptcy Code requires.
Chapter 15 of the Bankruptcy Code provides a mechanism for United States cooperation and coordination with insolvency proceedings abroad, often affording foreign debtors wide-ranging relief and expansive rights through the United States Bankruptcy Court system. Not all proceedings in foreign jurisdictions are eligible — in order to be so, a proceeding must constitute a “foreign proceeding” under the Bankruptcy Code.
Cryptoassets are traded on a global basis. Indeed, the markets are even more global and constant than markets in more conventional financial instruments, rivalled only perhaps by the FX markets in their reach.
As one of the most important and influential countries in the Middle East, it is no surprise that the development of the laws and regulations of the UAE have a major impact on the region. The UAE Bankruptcy Law is no exception, and it has recently been amended to bring it up to date with international standards.
The amendments are particularly relevant for board members, who have a responsibility to ensure the financial health of their companies.
On 24 October 2022, Dubai Court of First Instance declared Arabtec Holding Company bankrupt and approved the liquidation of its assets. The decision highlights the responsibilities of directors, board members and managers of all companies, and the possibility they can be held liable and accountable under UAE Laws for the mismanagement and the fallout of a company.
The Court appointed two trustees to list the assets of the bankrupt company, complete the liquidation and pay the creditors. Regarding the company’s governance, directors, managers and current assets, the Court ruled:
由于涉及股权回购/现金补偿责任与违约责任，违约金条款在对赌协议中表现得比较复杂。本文将在前述两种分类方法的基础上，结合司法案例具体分析违约金条款在对赌协议中的适用情况。
违约金是民商法中一种常见的违约责任形式。《民法典》第585条第1款就违约金作出了如下规定：
当事人可以约定一方违约时应当根据违约情况相对方支付一定数额的违约金，也可以约定因违约产生的损失赔偿额的计算方法。
显然，《民法典》将约定违约金的性质定位为，合同当事人预先约定的、由一方违约导致另一方损失的损害赔偿额。换言之，约定违约金的基本功能是补偿守约方损失而非惩罚违约方，更不是让守约方通过约定违约金获利。通过后文的案例，我们将看到约定违约金的这一性质定位是如何影响法院判决的。
对赌协议中的违约金条款通常有如下两种表现形式：融资方违反股权回购/现金补偿义务的违约金，融资方违反其他义务的违约金。
以投资方要求股权回购为例，前者表现为，根据对赌协议的约定，股权回购条件成就且投资方向融资方主张回购时，如果不履行或者逾期履行股权回购义务，则融资方需要按照应付但未付款项的一定比例支付逾期违约金。
1. Related Fund Entity filings for private funds]
On 1 September 2021, the Cayman Islands Monetary Authority (CIMA) issued a Notice advising industry that a new Related Fund Entity (RFE) form for private funds was available for use via CIMA's Regulatory Enhanced Electronic Forms Submission (REEFS) portal.
While the world wrestles with the day-to-day realities of the pandemic, 2021 will bring further challenges. With the memory of the litigious and regulatory aftermath of the global financial crisis still fresh, what should be on your radar?
1. Disputed margin calls and close-outs
Recent regulatory developments of interest to all financial institutions. Includes key COVID-19 updates from the UK FCA, AML/CTF updates and more.
COVID-19: FCA statement on handling of post and paper documents
On 13 May 2020, the Financial Conduct Authority (FCA) published a statement on how firms should handle post and paper documents during the COVID-19 pandemic.