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    Transactions at undervalue and unfair preferences - how will the Court interpret s49 and s50 of the Bankruptcy Ordinance?
    2015-12-07

    In Wong Tak Man, Stephen & Another v Cheung Siu Fai & Ors [2015] HMP 1431/2012, the Court held that transfers of funds made by a bankrupt were not transactions at undervalue or unfair preferences pursuant to s49 and s50 of the Bankruptcy Ordinance (the "BO"). This case serves as a useful reminder on how the Court will interpret s49 and s50 BO, as deemed to be applied in a corporate context by s.266B(1)(a) of the Companies (Winding Up and Miscellaneous Provisions) Ordinance (Cap 32).

    Facts 

    Filed under:
    Hong Kong, Insolvency & Restructuring, Litigation, Herbert Smith Freehills LLP, Bankruptcy
    Authors:
    Gareth Thomas , Damien Whitehead
    Location:
    Hong Kong
    Firm:
    Herbert Smith Freehills LLP
    Hong Kong’s top court finds delay in commencement of bankruptcy period unconstitutional
    2015-12-16

    In the recent case of Official Receiver v Zhi Charles (FACV 8/2015) (5 November 2015), the Court of Final Appeal (the "CFA") found s 30A(10)(a) of the Bankruptcy Ordinance (Cap 6) (the "BO") unconstitutional.

    Filed under:
    Hong Kong, Insolvency & Restructuring, Litigation, Private Client & Offshore Services, Herbert Smith Freehills LLP, Bankruptcy
    Authors:
    Damien Whitehead
    Location:
    Hong Kong
    Firm:
    Herbert Smith Freehills LLP
    The CFA rules section 30A(10)(a) of the Bankruptcy Ordinance unconstitutional
    2015-12-28

    Official Receiver v Zhi Charles, formerly known as Chang Hyun Chi, and Joint and Several Trustees of the Estate of Chan Hyun Chi, the Bankrupt (FACV 8/2015)

    Filed under:
    Hong Kong, Capital Markets, Insolvency & Restructuring, Litigation, Kennedys Law LLP, Bankruptcy, Constitutionality
    Authors:
    Rudy Chung , Mark West , Kevin Yam , Jasmine Tse
    Location:
    Hong Kong
    Firm:
    Kennedys Law LLP
    Hong Kong: clarification on calculation of payment under the Protection of Wages on Insolvency Ordinance
    2015-05-22

    The Protection of Wages on Insolvency Fund (the "Fund") was established in 1985 to provide timely relief in the form of an ex gratia payment to eligible employees affected by the insolvency of their employers, for example where employees' severance payments are withheld pending winding-up proceedings. Section 16(2) of the Protection of Wages on Insolvency Ordinance (the "Ordinance") provides that the Commissioner for Labour shall not make payment out of the Fund of amounts exceeding certain caps.

    Filed under:
    Hong Kong, Employment & Labor, Insolvency & Restructuring, Litigation, Jones Day
    Authors:
    Anita Leung , Michael Mai
    Location:
    Hong Kong
    Firm:
    Jones Day
    Can a company be wound up in Hong Kong if the relevant contract contains an arbitration clause?
    2015-06-04

    Given the nature of their businesses, shipping companies may be involved as respondents in arbitration proceedings in different jurisdictions. As arbitrations tend to be lengthy procedures, a claimant to such proceedings may want to explore whether there are any quicker routes they can take to recover their losses. One such option they might consider is bringing a winding up petition against the company.

    Filed under:
    Hong Kong, Arbitration & ADR, Insolvency & Restructuring, Litigation, Clyde & Co LLP, Arbitration clause, Liquidation
    Location:
    Hong Kong
    Firm:
    Clyde & Co LLP
    Hong Kong court casts doubt on the ability of minority lenders to enforce independently
    2015-07-29

    It has long been considered that lenders under a syndicated facility retain a right to seek to recover their portion of a loan directly following a payment default, typically by seeking the winding up of obligors. This is based on the several nature of the rights of finance parties which appears in clause 2 of the standard LMA terms. 

    Filed under:
    Hong Kong, Banking, Insolvency & Restructuring, Litigation, Hogan Lovells
    Authors:
    Joe Bannister , Owen Chan , Stuart Tait , Allan Wardrop
    Location:
    Hong Kong
    Firm:
    Hogan Lovells
    Hong Kong court considers commercial character of funder in context of assessing commercial funding arrangements for companies in liquidation
    2015-11-06

    The case of Re Company A-E [2015] HCMP 2019/2015 demonstrates that the Court will take a practical approach in determining whether a funding arrangement infringes upon the common law rules against maintenance and champerty. The Court will consider commercial factors, such as the underlying rationale for the funding arrangement and the commercial character of the funder, alongside its analysis of the common law principles.

    Filed under:
    Hong Kong, Insolvency & Restructuring, Litigation, Herbert Smith Freehills LLP, Common law
    Authors:
    Gareth Thomas , Julian Copeman , Justin D'Agostino , William Hallatt , Dominic Geiser , Damien Whitehead
    Location:
    Hong Kong
    Firm:
    Herbert Smith Freehills LLP
    Safeguard your privilege: lessons from 2014
    2015-01-21

    In 2014, the law of privilege was considered from various angles, with the year closing on a Court  of Final Appeal decision emphasising the primacy of legal professional privilege ("LPP") as an  absolute right guaranteed by the Basic Law of Hong Kong.

    While the cases outlined below generally provide comfort that the law of privilege in Hong Kong  holds strong, we offer a few practical points to help safeguard the privilege of legal advice:

    Filed under:
    Hong Kong, Capital Markets, Insolvency & Restructuring, Litigation, Hogan Lovells, Legal professional privilege
    Authors:
    Chris Dobby , Allan Leung , Mark Lin , Patrick Sherrington , Damon So
    Location:
    Hong Kong
    Firm:
    Hogan Lovells
    Shipping insolvencies: a Hong Kong perspective
    2015-01-23

    As the bankruptcy of OW Bunker has shown, insolvency in a shipping context can cause significant, far reaching and immediate legal uncertainty. The interaction of insolvency procedures, jurisdictional issues, and the complex web of contractual relationships involved in shipping insolvencies creates unique practical and legal challenges. In this Briefing, we consider from a Hong Kong perspective some of the practical issues that commonly arise.

    Insolvency in the Hong Kong Courts

    Filed under:
    Hong Kong, Insolvency & Restructuring, Litigation, Shipping & Transport, HFW, Debtor
    Authors:
    Elizabeth Sloane , Hao-Ling Yau , George Lamplough
    Location:
    Hong Kong
    Firm:
    HFW
    Modified Universalism - privy to Singular clarification?
    2015-01-26

    While most jurisdictions provide liquidators with wide investigative powers to locate and realise assets locally, the exercise of such powers becomes more complicated when the assets are situated overseas. As more and more businesses expand globally and corporate structures become equally more complex, the liquidators’ task becomes more problematic in winding up such companies.

    Filed under:
    Hong Kong, Insolvency & Restructuring, Litigation, Private Client & Offshore Services, RPC, Common law, Liquidator (law)
    Authors:
    David Smyth , Rebecca Wong
    Location:
    Hong Kong
    Firm:
    RPC

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