对于《最高人民法院关于适用〈中华人民共和国民法典〉有关担保制度的解释》（下称“《民法典担保解释》”或“新规”）对金融资管业务的影响，我们在上篇及中篇中从担保物权受托持有、增信文件性质、上市公司对外担保、担保物权登记、抵押预告登记等角度进行了详细探析。本篇我们将从资产收益权回购交易、仲裁与申请实现担保物权程序、担保与破产衔接角度，着重介绍新规的修订及对金融资管业务的影响。择重点概括如下：
一、新规明确特定资产或资产收益权转让及回购交易中让与担保规则的处理方法
In an effort to alleviate the impact of COVID-19 on UK businesses and encourage the supply of essential goods and services during the pandemic, the UK Government announced plans earlier this year to temporarily suspend wrongful trading laws and to fast track proposed permanent reforms to the existing insolvency regime (these reforms were developed in 2016 and consulted on in 2018).
In our work with international companies supplying goods to the UK, we see the same issues arising regularly. In Part 3, we examined the types of insolvency process a customer may be subject to. In this fourth of five articles based on the five elements of the Wu Xing, we take the theme of Fire and explain the significant powers that arise for the insolvency practitioner on the entry into insolvency: to investigate propriety and recover assets to the central pool to pay creditors.
Fire: the great powers of the insolvency practitioner regarding transactions defrauding creditors
Australia’s corporate insolvency laws are in a process of significant change.
The latest proposed reform concerns the controversial practice of “phoenixing”. In recent months and years, phoenixing has attracted attention from a wide band of Australian regulators.
The Phoenixing Bill
Since the decision of the Supreme Court of New South Wales in Re Independent [2016] NSWSC 106, there has been doubt about whether receivers and liquidators should apply the statutory priorities afforded to employee entitlements in sections 433, 561 and 556 of the Corporations Act 2001 (Cth) (Act) when distributing the assets of companies who have conducted their businesses as trusts.
On 29 April 2016, the Australian Government Treasury released a proposal paper that, among other things, proposed reforms to introduce an ipso facto moratorium (Proposal). This reform was foreshadowed in as part of the Australian Government’s National Innovation and Science Agenda.
In the wake of the global financial crisis, Hong Kong’s key financial regulators, the Financial Services and the Treasury Bureau, the Hong Kong Monetary Authority (HKMA), the Securities and Futures Commission (SFC) and the Insurance Authority (IA), have jointly issued a consultation paper (Paper) that outlines proposals for establishing a resolution regime for significant financial institutions (FIs) that are in crisis or likely to collapse.
Amaca Pty Ltd v McGrath & Anor as liquidators of HIH Underwriting and Insurance (Australia) Pty Ltd [2011] NSWSC 90
引言：近期某集团破产清算案中，关于债务人与境外基金债权人之间因“维好协议”引发的纠纷事项，上海金融法院作出裁定，对境外债权人在香港特别行政区取得的对该债务人的胜诉判决予以认可，鉴此该境外债权人的债权有望在破产程序中获得确认。而其他破产案件中，管理人对境外投资人基于“维好协议”的债权作出不予确认的决定。由此，关于“维好协议”项下的债权人应如何主张权利、在“维好提供方”破产的情况下可否享有破产债权人地位并参与破产程序等问题众说纷纭。为此，本文将从“维好协议”的性质入手，在境内“维好提供方”破产语境下，阐述“维好协议”项下债权人可以主张权利的路径，并分析各救济途径在司法实践中的可行性。
一、“维好协议”的性质分析
（一）何谓“维好协议”
As one element of a package of measures intended to assist UK businesses with coping with economic difficulties brought about by the coronavirus pandemic, the UK government will temporarily suspend wrongful trading laws. The proposal to temporarily suspend wrongful trading laws is set out in the Corporate Insolvency and Governance Bill (the ‘Bill’), which is currently going through the UK parliament’s legislative process and is expected to be passed into law imminently.