On 14 May 2021, the Supreme People’s Court (SPC) and the Hong Kong government agreed on a framework for judicial co-operation in corporate insolvency and debt restructuring. Under the framework:
. A mainland bankruptcy administrator may apply to the Hong Kong High Court for recognition of and assistance to mainland bankruptcy proceedings.
. A Hong Kong liquidator or provisional liquidator may apply to the Intermediate People’s Court at a designated pilot area for recognition of, and assistance to, Hong Kong insolvency proceedings and debt restructuring (scheme of arrangement).
The pilot areas currently include the Shanghai, Xiamen and Shenzhen municipalities.
For mainland bankruptcy administrators, the framework largely formalises the Hong Kong court’s pre-existing approach of common law for recognising and assisting bankruptcy proceedings on the mainland.
For liquidators and provisional liquidators appointed in Hong Kong insolvency proceedings, the SPC’s opinion, issued on 14 May 2021 (pursuant to the framework), offers authoritative guidance on the circumstances in which designated mainland courts will recognise Hong Kong proceedings. The opinion also gives counsel on what judicial assistance a liquidator or provisional liquidator could obtain in order to discharge their duties on the mainland.
Another ground-breaking development brought by the framework is that a scheme of arrangement in Hong Kong can now be used to compromise debt governed by mainland law.
Mainland bankruptcy administrators carrying out duties in Hong Kong. A bankruptcy administrator appointed to a mainland company is responsible for dealing with its assets and creditors in Hong Kong, and potentially investigating its affairs in Hong Kong, if any. In two cases decided in 2020, Justice Jonathan Harris granted orders recognising and assisting bankruptcy administrators appointed in Shanghai and Shenzhen, respectively.
In Re Founder Information (Hong Kong) Limited, 2021, the company’s liquidators sought leave to bring an action against a group company undergoing bankruptcy administration in Beijing. Justice Harris noted that if the bankruptcy administrators of the intended defendant would like to defend the proceedings, they would need to demonstrate their status as its duly authorised agents. He suggested that one option was for the bankruptcy administrators to seek formal recognition and assistance in Hong Kong, as was done in the precedent cases in 2020.
This indicates the Hong Kong court’s open-mindedness toward mainland bankruptcy administrators discharging their duties in Hong Kong, and is consistent with the principle of modified universalism under Hong Kong insolvency law.
Hong Kong liquidators and provisional liquidators carrying out duties on the mainland. The converse scenario involves a Hong Kong liquidator or provisional liquidator who would like to deal with the company’s assets and creditors on the mainland, and potentially investigate its affairs on the mainland, if any. A common example is when a Hong Kong company has a wholly owned subsidiary on the mainland, which operates a factory there – the shareholding in the subsidiary is the company’s asset on the mainland.
In the past, without the framework, liquidators or provisional liquidators have often encountered practical difficulties in carrying out their duties on the mainland, because mainland law had no established mechanism to recognise their status as the insolvency office-holder of the Hong Kong company in question.
In the above-mentioned example, therefore, the mainland administrative authorities might not readily accept that the liquidator or provisional liquidator had the authority to act on behalf of the shareholder company to, say, replace the directors and personal representative of the mainland subsidiary.
The framework
The framework brings welcome clarity to both above-mentioned scenarios. As far as mainland bankruptcy administrators are concerned, the framework is assurance that they can apply for the Hong Kong court’s recognition and assistance by following the procedure adopted in the precedent cases.
The practical guide issued by the Department of Justice on 14 May 2021 confirms that a bankruptcy administrator should first obtain the mainland court’s letter of request, and then apply to the Hong Kong court (by ex-parte originating summons with affidavit/affirmation evidence) for a standard form order.
For Hong Kong liquidators and provisional liquidators, the framework is a long-awaited breakthrough. The SPC issued an opinion on 14 May 2021 to put flesh on the bones, stipulating the following pre-requisites for the framework apply:
. The subject company must have its centre of main interests (COMI) in Hong Kong continuously for at least six months.
. The company’s principal assets on the mainland must be in a pilot area (Shanghai, Xiamen or Shenzhen), or it must have a place of business or a representative office in a pilot area.
Under the opinion, the mainland court may, if applied for, impose measures for preserving the company’s property before an application for recognition and assistance is decided. In addition, upon the mainland court recognising the Hong Kong insolvency proceedings in a given case:
. Purported repayment of debt to individual creditors shall be invalid.
. Any ongoing civil action or arbitration involving the company shall be suspended until after the liquidator or provisional liquidator takes over its property.
. Any measures for preserving the company’s property shall be lifted and the procedure for execution shall be suspended.
. The liquidator or provisional liquidator may be allowed to perform various duties on the mainland as set out in the opinion, such as taking over the company’s property and ascertaining its financial position.
. A mainland bankruptcy administrator may be designated.
. Further judicial assistance may be granted regarding issues such as the realisation and distribution of bankruptcy property.
Significance of the framework from Hong Kong’s perspective. In terms of Hong Kong insolvency proceedings, the framework applies to compulsory winding-up, creditors’ voluntary winding-up, and schemes of arrangement promoted by a liquidator or provisional liquidator and sanctioned by the Hong Kong court. Two points can be made:
. The inclusion of creditors’ voluntary winding-up reflects the latest jurisprudence (see Re Joint Liquidators of Supreme Tycoon Ltd, 2018) and extends the framework to many more potential cases than if only compulsory winding-up were covered.
. The inclusion of schemes of arrangement means that, as Justice Harris observed in Re China Oil Gangran Energy Group Holdings Limited (Provisional Liquidators Appointed) (For Restructuring Purposes), 2021: “It is now possible for a Hong Kong scheme to compromise debt governed by mainland law.” Where such debt is involved, Hong Kong is, with the benefit of the framework, well placed to be the jurisdiction of choice to co-ordinate a debt restructuring.
Issues for judicial guidance
Judicial guidance would be helpful on a number of issues arising from the SPC opinion. For instance:
. The opinion provides that a company’s COMI generally means its place of incorporation, but the mainland court shall take into account other factors, including the company’s place of principal office, principal place of business, place of principal assets, etc. Conceptually, the framework can apply to a company that was incorporated in, say, an offshore jurisdiction, or even the mainland, but has its COMI and insolvency proceedings in Hong Kong. Is the framework intended to be so flexible?
. The opinion does not require the Hong Kong insolvency proceedings of a company in question to be commenced after the framework took effect on 14 May 2021. Does the framework apply to Hong Kong insolvency proceedings commenced before that date?
. At present, only courts in the pilot areas would grant recognition and assistance to a Hong Kong liquidator or provisional liquidator. Under the opinion, a successful applicant may be allowed to perform various duties on the mainland. Does this mean they can do so throughout the mainland, with mainland courts outside the pilot areas further assisting, as appropriate?
The framework would be the most effective if the answer to each of these questions is “yes”. Meanwhile, the SPC designation, in due course, of more pilot areas for the purposes of the framework is to be anticipated.
Business Law Digest is compiled with the assistance of Baker McKenzie. Readers should not act on this information without seeking professional legal advice. You can contact Baker McKenzie by e-mailing Howard Wu (Shanghai) at howard.wu@bakermckenzie.com
