In the early 2000s, the conversation around the standards for a good faith filing in bankruptcy was intense, particularly leading up to the passage of the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (BAPCPA). Concerns were widespread that bankruptcy provisions were vulnerable to abuse, prompting a national debate on what could constitute a bad-faith filing. Nearly 20 years later, the landscape has evolved significantly. The financial crisis of 2008 brought unprecedented mortgage foreclosures and forced a larger segment of the population to consider bankruptcy.

Il nuovo articolo di Angelo Zambelli pubblicato oggi nel supplemento: “Crisi d’Impresa, il correttivo” de Il Sole 24 Ore

自主清算程序相对更加灵活，可根据实际情况灵活调整清算策略，因此退出效率会更高。破产清算需要根据企业破产法的规定履行相应的程序流程并受法院监督，清产核资、拍卖处置资产也是时间不可控的程序，原则上破产清算周期更长。尽管如此，从破产管理人的选派程序和破产清算的申请流程看，破产管理人由法院指定，而后从破产申请到清算程序终止的一系列工作，均由破产管理人负责开展，公司股东工作量极大减少。

图：源自投中网

虽然过去五年国有资本的参股投资行为在投资金额上并不领先，但其项目数量远超并购及新股发行认购行为。与此相对应的是，国务院国资委于2023年6月23日发布了《国有企业参股管理暂行办法》（国资发改革规〔2023〕41号）（简称“暂行办法”），该办法对国有资本的投资、管理、退出进行了规范，标志着国资监管向强化国有企业参股管理迈进了一大步。《暂行办法》将适用范围扩大至所有国资委履行出资人职责的企业及其子企业，而不仅局限于中央企业^[1]。

在投资方面，该办法对国有资本进行了谦抑化规范，严控非主业投资，例如第六条要求国有资产投资“坚持聚焦主责主业，符合企业发展战略规划，严控非主业投资，不得通过参股等方式开展投资项目负面清单规定的禁止类业务”。

I. Introduction

Dissolution and consequential winding up, is a critical process in the life cycle of a company, marking its transition from active business operations into a state of liquidation eventually sealed by complete closure. Under Maltese law, the dissolution of companies is primarily governed by the Companies Act (Chapter 386 of the Laws of Malta, the “Act”), which provides a structured framework to ensure that the process is conducted fairly and efficiently.

On 15 May 2024, the Bermuda Court granted an order striking out a winding-up petition (the “Petition”), setting aside an earlier order appointing joint provisional liquidators (“JPLs”), and discharging the JPLs appointed over New Sparkle Roll International Group Limited (the “Company”), a Bermuda company listed on the Hong Kong Stock Exchange. The Company’s new board of directors (the “New Board”) was represented by Conyers.

Background

This briefing note provides an outline of the different processes of voluntary winding up and striking off under the Companies (Guernsey) Law, 2008 (as amended) (the “Law”).

Voluntary winding up

In Morgan v McMillan Investment Holdings Pty Ltd [2024] HCA 33, the High Court had to consider whether a right to sue held by companies in liquidation could provide the required gateway for a pooling order under s 579E(1) of the Corporations Act 2001 (Cth).

Key Takeaways

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The legislative framework applicable to insolvency and restructuring in Jersey has seen significant developments in recent years, with the introduction of the Companies Regulations No 8 2022 (the Regulations).

The Regulations provide additional powers to a company’s creditors – firstly, in relation to provisional liquidations (an emergency procedure designed to safeguard the assets of a failing company), and secondly in relation to creditors’ winding-ups.