In several Commonwealth jurisdictions, the corporate legislation allows creditors to petition a court to order the winding up of a debtor in circumstances where that debtor is unable to pay its debts as they fall due. Such legislation generally presumes that the debtor is insolvent if it has failed to comply with a statutory notice requiring the debtor to pay a certain debt within a given period of time (a statutory demand).
The ongoing COVID-19 pandemic has profoundly reshaped the global business landscape. Some companies that only months ago seemed unstoppably profitable have been brought to an existential brink by extended lockdowns, supply chain failures, and other obstacles caused by the pandemic. Other companies who have experienced less disruption (or in some cases windfalls) stand at the threshold of opportunity even as they prepare themselves for the challenges of the 'new normal'.
At present, global businesses face huge amounts of uncertainty owing to the Covid-19 crisis that is influencing the global economy in an unprecedented manner. From contractual supply chain issues, which have led to the activation of force majeure clauses, among others, to employment issues, insurance disputes, and the real and imminent threat of insolvency of counterparties, businesses need to take quick, effective steps to avoid trouble in these difficult times.
Introduction
The past decade has witnessed a significant increase in cross-border commerce involving Chinese companies. If these ventures fail, a common dilemma for our clients has been which jurisdiction they should focus their efforts on when enforcing their rights. As we explain below, the success of a cross-jurisdictional recovery claim can often depend on the important tactical decision of focusing on the correct jurisdiction(s) at the outset.
Identify all relevant jurisdictions
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
Re China Oil Gangran Energy Group Holdings Ltd [2020] HKCFI 825
Court of First Instance
Reasons for Decision: Harris J
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.
近日，香港高等法院原讼法庭夏利士法官在深圳市年富供应链有限公司 (以下简称“深圳年富”)的破产案件（[2020]HKCFI 965）中 (为表述方便，香港公司清盘在本文亦称为“破产”)(以下简称“深圳年富案”)，再次承认和协助了内地的破产程序及破产管理人身份。这是继上海华信国际集团有限公司([2020]HKCFI 167) 的破产案件(以下简称“上海华信案”) 后，香港法院第二次承认和协助内地的破产程序及破产管理人身份。
近半年来，香港法院已经在两起案例中认可了内地法院指定的破产管理人身份并提供司法协助，这不仅进一步巩固了香港法院对内地破产管理人承认和协助的相关法律原则与实务，更适应了内地和香港在破产程序中相互协助的需求，对两地跨境破产协助具有重要的参考价值。
本文将简要介绍香港跨境破产协助的法律要点：
Shenzhen Everich Supply Chain Co, Ltd (in Liquidation in the Mainland of the People's Republic of China) [2020] HKCFI 965 (date of judgment: 4 June 2020)
For the second time the Hong Kong Court has recognised a PRC winding-up proceeding and granted assistance to the administrator of a PRC company appointed by a PRC Court. The Hong Kong Court also granted the administrator an express right to take control of the company's subsidiaries in Hong Kong.
Background