Historically, the Hong Kong courts have generally recognised foreign insolvency proceedings commenced in the jurisdiction in which the company is incorporated. This may no longer be the case in Hong Kong following the recent decision of Provisional Liquidator of Global Brands Group Holding Ltd v Computershare Hong Kong Trustees Ltd [2022] HKCFI 1789 (Global Brands).

Historically, the common law has only recognised foreign insolvency proceedings commenced in the jurisdiction in which the company is incorporated. This may no longer be the case in Hong Kong. Going forward, a Hong Kong court will now recognise foreign insolvency proceedings in the jurisdiction of the company’s “centre of main interests” (COMI). Indeed, it will not be sufficient, nor will it be necessary, that the foreign insolvency process is conducted in a company’s place of incorporation.

On 6 June 2022, Mr Justice Harris sanctioned a Hong Kong scheme of arrangement for Rare Earth Magnesium Technology Group (the Company) in re Rare Earth Magnesium Technology Limited [2022] HKFCI 1686 (Rare Earth).

While the M&A pipeline remains strong and the usual acquisition models for listed companies (takeovers and schemes of arrangement) remain active, as talk turns to economic headwinds and rising interest rates, it is worth bearing in mind the third possible pathway to acquire a listed company in a distressed context: the “DOCA takeover”.

IN BRIEF

With inflationary pressures and battered supply chains plaguing business, the debate has resumed over how long struggling firms can put off restructuring

With governments winding down Covid-19 support, supply chains buckling under multiple disruptions, growth stalling and high inflation taking hold, it is unsurprising that businesses are feeling the pressure at 2022's halfway mark. The worsening climate recently prompted JPMorgan Chase chief executive Jamie Dimon to warn investors of an incoming economic "hurricane".

HERBERT SMITH FREEHILLS

Pension Disputes Bulletin

Welcome to the latest edition of our regular pension disputes bulletin. In these bulletins we report on key cases, Ombudsman decisions and regulatory activity and we highlight emerging risks for pension schemes, providers, sponsors, administrators and other service providers.

In a hurry? In a hurry? Read the `Risk warning', `Takeaways' and `Comment' boxes to find out the key risks, points to note and to read our observations on each case/ development.

MAY 2022

We previously wrote about the Court’s attitude to liquidators’ applications for directions on matters arising in a compulsory winding up (i.e., by the court) under section 200 of the Companies (Winding Up and Miscellaneous Provisions) Ordinance, Cap.

The first case has been decided under Australia’s statutory powers to set aside “creditor defeating dispositions”.

In its recent decision in Walton v ACN 004 410 833 Limited (formerly Arrium Limited) (in liquidation) [2022] HCA 3 (Walton), the High Court of Australia held, in a split decision, that the mandatory public examination power contained in section 596A of the Corporations Act 2001 (Cth) (the Act) could be used by eligible applicants to examine directors and other officers of a company in external administration, including senior management, external administrators and trustees, about the company’s affairs for the broad purposes of enforcing and promoting comp

In a further development to cross-border insolvency cooperation between Hong Kong and Mainland China, the Hong Kong Court has issued a letter of request to a Mainland Court requesting recognition and assistance of Hong Kong liquidators appointed over a Cayman company, under the mutual recognition arrangement introduced on 14 May 2021 (the “Arrangement“, see our previous update here