On 21 April 2023, the Hong Kong Court of Appeal (CA) released its judgment Power Securities Co Ltd v Sin Kwok Lam [2023] HKCA 594, which provided certainty on the application of the bar against reflective loss for shareholders.

Background

Indonesia Authors: Miriam Andreta and Hans Adiputra Kurniawan 1. Bankruptcy and Liquidation: Updates Brought by PPSK Law With respect to bankruptcy and liquidation of certain parties (public listed companies, banks, non-bank financial institutions), there are certain updates and clarifications set out in Law on Development and Improvement of Financial Sector (also known by its local abbreviation “PPSK Law”) - which came into effect on 12 January 2023 (except for certain provisions that are explicitly intended to take effect otherwise).

A recent amendment to the Goods and Services Tax Act 1985 has clarified that voluntary administrators are personally liable for the GST of companies under their administration.

What can we say about the outcome of the GAS (Great Annual Savings Company Limited) sanction hearing that hasn’t already been reported?

It’s impossible not to comment on the fact that the plan was not sanctioned, and as a consequence of fierce opposition from HMRC that it avoided cram down. Nor that the court refused to sanction the plan on the basis that the conditions for cram down were not met – the court was not satisfied that HMRC would be better off under the plan and even if it were the judge said he would have not exercised his discretion to cram down.

The original version of this article was first published in the Trilegal Quarterly Roundup.

Key Developments

1. SEBI prescribes new disclosure requirements and dos and don’ts for the issue of green debt securities

Is a debtor “engaged in commercial or business activities” for Subchapter V eligibility?

Such question has been addressed on many occasions and by many courts.

The trend seems to be toward a conclusion that the nature and quantity of “commercial or business activities” required for Subchapter V eligibility is this:

• Nature = “easily met”; and
• Quantity = “not much.”

The latest opinion to confirm the trend is In re Robinson, Case No. 22-2414, Southern Mississippi Bankruptcy Court (issued April 17, 2023; Doc. 90).

A bankruptcy petition should not proceed if the debt is disputed and subject to an exclusive jurisdiction clause in favour of a foreign court.

The original version of this article was first published in the Trilegal Quarterly Roundup.

Key Developments

1. Delhi High Court pierces the corporate veil to make non-parties to an arbitration liable for the arbitral award

In a rare move against long-standing precedent, the Bankruptcy Court for the Southern District of New York recently reversed course in its district on calculating allowed damages when debtor-tenants in bankruptcy reject commercial leases. This decision could limit landlords’ damage claims if those rejected leases are long term and contain rent escalation clauses. The case, In re Cortlandt Liquidating LLC, et al. Case No. 20-12097-MEW (Bankr. S.D.N.Y. Feb.

Lehman Bros. Int'l (Europe) (In Admin.) v. AG Fin. Prod., Inc., No. 653284/2011 (Sup. Ct. N.Y. County May 17, 2023) [click for opinion]