Since returning to Hong Kong to practise arbitration three years ago, I've observed that the public domain of insolvency and the private realm of arbitration regularly collide.

The question of which issue should take priority - a winding-up petition or an arbitration/exclusive jurisdiction clause - remains in a state of flux.

But perhaps we can describe the most recent evolution in relevant jurisprudence as being a "stay of play".

While the courts have taken (somewhat) different approaches, the prevailing view, for now, seems to be that winding-up petitions should be be stayed subject to an arbitration/exclusive jurisdiction clause (and other relevant factors).

There's a lot more nuance to that position of course, and you'll find the details in our article, co-authored with Ian De Witt and Tim Au.

We discuss the recent HK Court of First Instance decision in Re Shandong Chenming Paper Holdings Limited, in the context of recent HK case law.

Read the full article at

https://www.tannerdewitt.com/stay-of-play-winding-up-v-arbitration-again/

🎶 "𝐌𝐚𝐲 𝐈 𝐡𝐚𝐯𝐞 𝐲𝐨𝐮𝐫 𝐚𝐭𝐭𝐞𝐧𝐭𝐢𝐨𝐧, 𝐩𝐥𝐞𝐚𝐬𝐞? 𝐖𝐢𝐥𝐥 𝐭𝐡𝐞 𝐫𝐞𝐚𝐥 𝐛𝐨𝐧𝐝𝐡𝐨𝐥𝐝𝐞𝐫 𝐩𝐥𝐞𝐚𝐬𝐞 𝐬𝐭𝐚𝐧𝐝 𝐮𝐩?" 🎶 Channeling a bit of Eminem today to talk about a buzzing insolvency topic - the standing of bondholders under global notes! 📜

𝐖𝐡𝐲 𝐢𝐬 𝐭𝐡𝐢𝐬 𝐢𝐦𝐩𝐨𝐫𝐭𝐚𝐧𝐭?

Lack of standing (to bring a winding up petition) is one of those powerful defences that, if proven, can halt a petition in its tracks. 🛑 But there's no universal rule here. It all boils down to the fine print of the indenture. (Of course...!) 🧐

In my latest insolvency article (linked below), co-authored with Ian De Witt and Tim Au, we delve into what fine print you should watch out for. 🦅

🔍 𝐊𝐞𝐲 𝐓𝐚𝐤𝐞𝐚𝐰𝐚𝐲𝐬:

💡 𝐋𝐚𝐧𝐝𝐦𝐚𝐫𝐤 𝐃𝐞𝐜𝐢𝐬𝐢𝐨𝐧: In Re Leading Holdings Group Limited [2023] HKCFI 1770, the Hong Kong courts addressed for the first time, the rights of global note investors.

💡 𝐆𝐥𝐨𝐛𝐚𝐥 𝐍𝐨𝐭𝐞 𝐒𝐭𝐫𝐮𝐜𝐭𝐮𝐫𝐞: A prevalent debt security in international finance, often designed to ensure that all bondholders act collectively through the trustee. 🤝

💡 𝐑𝐢𝐠𝐡𝐭𝐬 & 𝐑𝐞𝐥𝐚𝐭𝐢𝐨𝐧𝐬𝐡𝐢𝐩𝐬: In determining the bondholder's standing, the Court differentiated between trust property beneficiaries and equitable assignees.

💡 𝐏𝐫𝐞𝐜𝐞𝐝𝐞𝐧𝐭𝐬 𝐟𝐫𝐨𝐦 𝐨𝐟𝐟𝐬𝐡𝐨𝐫𝐞 𝐣𝐮𝐫𝐢𝐬𝐝𝐢𝐜𝐭𝐢𝐨𝐧𝐬: The article discusses significant recent cases from the Cayman Islands and the BVI, including Re Shinsun Holdings (Group) Co., Ltd and Cithara Global Multi-Strategy SPC v Haimen Zhongnna Investment Development (International) Co. Ltd, on key relevant principles.

💡𝐓𝐡𝐞 𝐟𝐢𝐧𝐞 𝐩𝐫𝐢𝐧𝐭: The terms of the indenture will be essential in determining the standing of bondholders in individual cases.

𝐂𝐮𝐫𝐢𝐨𝐮𝐬 𝐭𝐨 𝐝𝐢𝐯𝐞 𝐝𝐞𝐞𝐩𝐞𝐫?

Read the full article at https://lnkd.in/gSKyyaTd

Three years ago, I returned to my home city, Hong Kong, after practising in the legal hubs of London and New York, focusing on international arbitration.🌏🌐

One striking difference I observed in the HK arbitration market was how often insolvency issues dovetailed with arbitration.

For instance, a debt default might lead to a statutory demand (with subsequent proceedings in the HK courts), but the process could be complicated by a defensive arbitration claiming an underlying dispute. 🤔

Providing clients with practical remedies using all the tools in the dispute resolution toolbox is why I'm excited to be part of Tanner De Witt's outstanding cross-border restructuring and insolvency team in Hong Kong, while still diving deep into my core practice in international arbitration. 🚀

So, alongside my arbitration insights, I'll be sharing my learnings and insights on cross-border insolvency/restructuring matters too. 📚

Speaking of which, I'm delighted to share my first insolvency/restructuring article at TDW, co-authored with Ian De Witt.🖋️

*****

📢 𝐇𝐨𝐧𝐠 𝐊𝐨𝐧𝐠'𝐬 𝐃𝐢𝐠𝐢𝐭𝐚𝐥 𝐏𝐮𝐬𝐡 𝐢𝐧 𝐁𝐚𝐧𝐤𝐫𝐮𝐩𝐭𝐜𝐲 𝐋𝐚𝐰𝐬 📢

The Hong Kong Government is moving towards digitisation, leaving hard copy documents (well, not entirely) in the past. The latest amendments to our bankruptcy laws now allow:

1️⃣ Electronic service of statutory demands

2️⃣ Use of electronic bundles & skeletons for winding-up & bankruptcy applications

3️⃣ Electronic submissions to the Official Receiver

𝐊𝐞𝐲 𝐇𝐢𝐠𝐡𝐥𝐢𝐠𝐡𝐭𝐬:

📧📲 Electronic service of statutory demands is a game-changer. Creditors can now serve demands via email, WhatsApp, WeChat, and other platforms. But there are conditions and implications for both creditors and debtors.

🌱💼 Say goodbye to paper waste! Electronic bundles for applications are not just eco-friendly but also cost-effective.

🖥️📑 The Official Receiver's new electronic submission system is set to revolutionise the way it handles documents, making processes smoother and more efficient.

🌟Embracing these changes is crucial in the digital age.

𝐑𝐞𝐚𝐝 𝐭𝐡𝐞 𝐟𝐮𝐥𝐥 𝐚𝐫𝐭𝐢𝐜𝐥𝐞 𝐚𝐭 https://lnkd.in/gx85eKtG