一、中澳破产程序之差异概述

破产制度是一种集体性债务清偿程序，旨在帮助无法偿还债务的公司或个人解决财务困境，同时确保债权人能够获得公平的清偿。中国和澳大利亚破产制度差异很大，本文旨在高度总结两种法律体系下破产制度的主要区别。

在澳大利亚，关于企业破产的适用法律主要规定在澳大利亚《公司法》(Corporations Act 2001)第五章，主要包括接管程序（Receivership）、清算程序（Liquidation）以及自愿管理程序（Voluntary Administration）。而在我国2007年颁布的《企业破产法》中，则主要包含三个破产程序，即破产清算程序、和解程序以及重整程序。本文将从破产程序的启动标准以及适用情景两方面对中澳破产程序之差异进行简要分析。

（一）破产程序启动标准

1、澳大利亚《公司法》项下的破产程序启动

With the increase in global trade and business, often involving complex corporate structures in multiple jurisdictions, we expect to see a significant increase in cross-border insolvency and restructuring matters in coming years. This is especially the case with rapid advancements in technology and digital change driving “borderless” transactions and investments in every industry.

In brief

On 18 January 2024, the Singapore International Commercial Court (SICC) issued its decision in Re PT Garuda Indonesia (Persero) Tbk [2024] SGHC(I) ("Re Garuda Indonesia"), which was the SICC's first decision on an application under the UNCITRAL Model Law on Cross-Border Insolvency (as enacted in Singapore in the Third Schedule of the Insolvency, Restructuring and Dissolution Act 2018 (2020 Rev Ed) ("Singapore Model Law")).

The Singapore Exchange Regulation (SGX RegCo) recently launched a public consultation on its proposed enhancements to Singapore’s corporate restructuring and trading resumption frameworks. Proposed changes to the Mainboard Rules and Catalist Rules (collectively, the Listing Rules) include inclusion of a practice note to provide guidance to issuers with listed securities suspended from trading on the expectations of SGX RegCo and amendments to streamline the application process for resumption of trading for suspended issuers.

The background to this case stems from a High Court judgment in 2022, where exemplary damages were awarded against a receiver in the sum of €550,000. The damages were awarded after a receiver had taken possession of and sold certain properties without first obtaining a court order under the Land and Conveyancing Law Reform Act 2009 (the “2009 Act”).

Is an administrator of a company an "officer" of that company? The Supreme Court's answer in a recent employment judgment (with potentially broad application) was a resounding "no," which will undoubtedly reassure insolvency practitioners faced with potential criminal liability for carrying out duties conferred on an "officer" of the company.

The purpose of the Vifo Act (the Wet veiligheidstoets investeringen, fusies en overnames (Vifo)) is to establish rules by which risks arising from certain acquisition activities can be controlled. The Bureau Toetsing Investeringen (BTI) has published three manuals explaining the following three criteria as mentioned in the Vifo Act: internal restructuring, acquisition of assets and active in sensitive technology.

A common defense to a fraudulent transfer claim in bankruptcy concerning a securities transaction is the “safe harbor” defense under section 546(e) of the Bankruptcy Code. In a unique twist, a post-confirmation trust in Delaware recently argued that the safe harbor defense should not be available if the underlying transaction was illegal under the law where the debtor/transferor was incorporated.

This is the second in a series of four articles on why Fed.R.Bankr.P. 9031, titled “Masters Not Authorized,” needs to be amended to authorize the utilization of special masters in complex bankruptcy cases.

The focus of this second article is on how the exclusion of special masters from bankruptcy cases: (i) is without a sound reason, and (ii) is based on a history of haste and uncertainty.[Fn. 1]

Bankruptcy Rule 9031—The Prohibition