对董事们而言，公司清盘可能是其以往不法行为报应不爽的审判日。如果无力偿债山雨欲来，有一些事项董事们应牢记在心，以免在无力偿债境况已不可避免时承担个人责任。
不公平优先权
有关不公平优先权的规定，可参见《公司（清盘及杂项条文）条例》第 266、266A 和 266B 条（第32章）(简称“条例)。下列情况均构成公司对某人给予不公平优先权：
- 此人为公司的债权人，或者是公司债务或负债的保证人或担保人；
- 因为诉讼，此人所处境地优于假如公司进行清算的情况；以及
- 公司有意让此人处于更优处境。请注意，如果对公司的合伙人给予不公平优先权，则对此意愿的推定将可以辩驳。
如果 (1) 在清盘即将启动之前的两年内对公司合伙人（如董事、影子董事或公司的其他高管），或是 (2) 在清盘启动之日前的六个月内对与公司无关联者给予不公平优先权，则构成不公平优先权的交易将作废，并可被法院命令搁置，从而将公司恢复到给予该不公平优先权之前的状态。
For directors, the winding up of a company could be judgment day when their past misdeeds come back to haunt them. If insolvency is on the horizon, there are various matters directors should bear in mind lest incurring personal liability if insolvency becomes inevitable.
Unfair Preference
The rules governing unfair preference are found under sections 266, 266A, and 266B of the Companies (Winding-Up and Miscellaneous Provisions Ordinance (Cap. 32) (the “Ordinance”). A company would be deemed to have given unfair preference to a person if:-
The Supreme Court of Canada delivered its reasons today in 9354-9186 Québec inc. v Callidus Capital Corp., 2020 SCC 10, after having unanimously allowed the appeals from the bench on January 9, 2020. Davies represented the principal – and successful – appellants in this matter.1
In its reasons, which were delivered by Chief Justice Wagner and Justice Moldaver, the Supreme Court laid out key principles for the conduct of insolvency proceedings (including proceedings under the Companies' Creditors Arrangement Act [CCAA]):
In response to the coronavirus (COVID-19) pandemic, Russia has changed its bankruptcy laws to provide for a moratorium on bankruptcies and a freeze on certain transactions. While the situation is dynamic, these amendments are relevant for ongoing or potential transactions in Russia, as well as a party’s ability to enforce pledges and other types of security interests or to seek other remedies against Russian companies.
The Eleventh Circuit has joined the Second in holding that consent to be called using an autodialer and/or prerecorded messages, given as part of a contract, cannot be unilaterally withdrawn. Medley v. DISH Network, LLC, 2020 WL 2092594 (11th Cir. May 1, 2020).
EIGHTH CIRCUIT BANKRUPTCY MONITOR
Joining three other bankruptcy courts, Judge Thuma of the District of New Mexico recently held that the rules issued by the Small Business Administration (“SBA“) that restrict bankrupt entities from participating in the Paycheck Protection Program (“PPP“) violated the Coronavirus Aid, Relief, and Economic Security Act, H.R. 748, P.L. 115-136 (the “CARES Act”), as well as section 525(a) of the Bankruptcy Code.
Re Debenhams Retail Limited (In Administration) [2020] EWCA Civ. 600
Under the Coronavirus Aid, Relief, and Economic Security (CARES) Act, qualifying businesses may seek up to $10 million under the Paycheck Protection Program (PPP) for funding payroll and business expenses. The US Small Business Administration (SBA) guarantees the loans, and the full principal amount of the loans and any accrued interest may qualify for loan forgiveness. For many businesses, PPP loans have served as a lifeline during the COVID-19 pandemic.
Courts continue to address constitutional and statutory challenges to COVID-19-related legislation and governmental orders. Among them, courts are examining eligibility for PPP loans under the CARES Act, as well as the constitutionality of “stay at home” and similar orders restricting activities.
PPP loans under the CARES Act