The special purpose liquidators of Queensland Nickel Pty Ltd (in liq) have been successful in their application in the Supreme Court of Queensland for freezing orders against Mr Clive Palmer and several companies which he controls.[1]
Background
Consider this situation: a dispute has arisen between two parties in relation to an agreement which is subject to an arbitration clause. Separately, a winding up application has been made against one of the parties to the arbitration in the jurisdiction in which it is incorporated. An arbitral award is obtained against the potentially insolvent company. That company has assets in Hong Kong, against which the creditor is now seeking to enforce their rights.
On 19 April 2013, the Federal Court of Australia handed down its judgment in Eopply New Energy Technology Co Ltd v EP Solar Pty Ltd [2013] FCA 356. The Court enforced a foreign award against a company in liquidation, in the latest evidence of Australia’s pro-arbitration environment.
Background
When a plaintiff obtains judgment against an insured but insolvent defendant in the Cayman Islands is the plaintiff entitled to the policy proceeds or do they have to be paid to the liquidator for the benefit of the defendant's creditors? The answer is yes when the claim involves a vehicle but is less clear in other cases. This article considers the arguments for and against a plaintiff being entitled to the policy proceeds in cases that do not involve a vehicle.
Background
Introduction
It is trite law that where a petition debt is disputed in good faith and on substantial grounds, the ordinary practice of the Court is to dismiss or strike out the winding up petition. However, this principle is more easily applied in theory than in practice. As a result, the Grand Court of the Cayman Islands has observed recently that "It is remarkable how much case law has been generated in relation to a legal test which has essentially been settled for many years" (Re Sky Solar Holdings Ltd).
The Royal Court in Jersey has a varied and challenging workload. The cases that have come before it this quarter certainly live up to that description. Here we discuss just a handful of cases that the Royal Court has determined, that, whilst in some respects are unremarkable, in other respects serve to illustrate the breadth of the experience that the Royal Court judiciary possesses.
Representation of Private Equity Fund Finance Limited [2018] JRC 194
IMMOVABLES
There are two principal insolvency procedures by which a lender can bring about the realisation of a property in Jersey, namely dégrèvement and désastre.
A debtor who fears that his property is going to be taken for his creditors either by way of a dégrèvement or by way of a désastre can apply to the Royal Court for a "Remise de Biens". A remise grants a debtor time to get his affairs in order and effect an orderly sale of all or some of his property thereby enabling him to retain that which he can afford.
National interests play a distinct part in application of the UNCITRAL model law on cross-border insolvency.
The Model Law
はじめに
ケイマン諸島と香港の裁判所は、この数ヶ月、ケイマン諸島の会社を再編することを目的とするクロスボーダーの申立てについて、関連する法域における裁判所がどのようにこれを処理するのか実用的な方向性を示しました。これは、国際礼譲および修正された普遍主義の原則に沿ったものです。
裁判所のスタート地点
手続が一つ以上のコモンローの法域で開始されたが、清算人の任命が未了の場合、裁判所が修正された普遍主義を適用するためのスタート地点は、倒産の主手続の役割を担うのはどの法域がより適当かということを考えることでしょう。最近の香港およびケイマン諸島の両地域の裁判例では、長年の先例に沿いながら、通常この法域とは会社の設立地であることを確認しました。なぜならば投資家やサービス・プロバイダーおよび債権者が通常関係しているからであり、とりわけ、会社の登録された営業所であったり、その取締役会の義務やその定款を規定する法律の地であるからです。
Rumours that a company is in the zone of insolvency may create a race to the assets, with potential creditors or interested parties commencing proceedings in an attempt to secure payment from the company before its assets are fully dissipated or tied up in the insolvency process. This can destroy the collective value in the enterprise or scupper a restructuring and result in significant duplicative costs.