Category Archives: bankruptcy

Arrangements, bankruptcy

Mainland-Hong Kong Insolvency “Arrangement” Forthcoming

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For those for whom the timing is right, tomorrow’s (14 May afternoon) event gives the interested person an opportunity to watch a discussion in real-time concerning a new hard-law legal “Arrangement”  (it is now clear that the document is not so entitled) between the Mainland (presumably the Supreme People’s Court (SPC) and the Hong Kong Special Administrative Region (Hong Kong SAR) on bankruptcy (insolvency) law and learn about relevant recent updates. The document is the Conference Summary [Meeting Minutes] on Procedures for the Mutual Recognition of and Assistance in Insolvency Procedures by the Courts of the Mainland and the Hong Kong SAR (内地与香港特别行政区法院相互认可和协助破产程序的会谈纪要).  At the same time, the SPC is releasing an Opinion approving pilot projects to implement the Conference Summary  最高人民法院关于开展认可和协助香港特别行政区破产程序试点工作的意见.  A pilot project approach is usual when the SPC wants to test whether procedures are workable before implementing them nationwide.

A  social media posting by one of Hong Kong’s leading barristers chambers describes it as the “most momentous cross-border insolvency development in a generation. ”  Although it is not so stated, I surmise (by reviewing the press conference announcing the Supplemental Arrangement Concerning Mutual Enforcement of Arbitral Awards between the Mainland and the Hong Kong Special Administrative Region” (the Supplemental Arrangement (关于内地与香港特别行政区相互执行仲裁裁决的补充安排), that the official signing of the new insolvency Arrangement will be held in the morning, after which a press conference will be held. My guess, based on that press conference, is that  SPC Vice President Yang Wanming (杨万明副院长) will sign on behalf of the SPC and that Hong Kong SAR Secretary for Justice Teresa Cheng will sign on behalf of the Hong Kong SAR Government.  The link to the SPC’s press conference indicates that Vice President Yang Wanming will in fact sign and that Judge Si Yanli will participate in the signing ceremony and the press conference.

According to the social media posting above, Mr. Justice Jonathan Harris, current Companies and Insolvency Judge of Hong Kong’s High Court, will be delivering a keynote speech during the afternoon Forum announced above.   My guess (without any factual basis) is that Judge Si Yanli will give a keynote as well.  The Arrangement is likely to have involved a great deal of hard work on the part of all involved in the drafting.

Justice Harris’s judgments contain valuable insights into some of Hong Kong’s cross-border insolvency-related issues, such as the intersection between stock exchange listings and insolvency.  His decision in the Winding-Up Proceedings of China Huiyuan Juice Group is a good example:

As I explained at the outset of this decision the court is hearing many petitions to wind-up listed companies whose businesses are in the Mainland.  Since the court resumed hearings in May more than half the petitions I have heard have involved listed companies. Remarkably petitions to wind-up Hong Kong incorporated companies operating domestic businesses are currently a minority…  What is now quite clear is that the use of the group structures I have described present difficulties.  It will be useful if I describe these and what I anticipate will be their impact for creditors and shareholders in Hong Kong and other jurisdictions….

As will be apparent from this decision the practice has developed of Mainland businesses listing in Hong Kong using corporate vehicles which have no connection with the Mainland, which is commonly the COMI [Center of Main Interest], , or Hong Kong where the business is to be listed.  The structure is made more complicated by group architecture which involves inserting between the listed company and the mainland companies at least one, and my impression is commonly more than one, intermediate subsidiary incorporated in a different offshore jurisdiction.  As this decision demonstrates this structure creates a significant barrier to steps being taken by creditors and shareholders to enforce rights using the courts of Hong Kong, which is the legal system that they have probably assumed they will be able to access if they need to take steps to enforce their legal rights against a company listed here.

As I have previously written,  cross-border bankruptcy (insolvency) law is an area of particular focus of the SPC.  Phrases in two 2020 SPC Opinions signal this Arrangement. Article 16 of the November 2020 SPC Opinion  on Providing Support and Guarantees for Shenzhen to Build Itself into a Pilot Demonstration Zone for Socialism with Chinese Characteristics (最高人民法院关于支持和保障深圳建设中国特色社会主义先行示范区的意见) states:

Promote the establishment of a cross-border bankruptcy recognition and assistance mechanism推动建立跨境破产认可与协助机制.

Additionally, Article 12 of the September 2020 SPC  Guiding Opinions on Further Expanding People’s Court Service Safeguards for Expanding the Opening Up to the World (Open Policy Guiding Opinions)) (最高人民法院关于人民法院服务保障进一步扩大对外开放的指导意见) contains the following (translation thanks to Chinalawtranslate):

12. Properly handle cross-border bankruptcy [insolvency], financial, and enforcement cases. Adhere to the principle of equal protection for similar claims, actively participate in and promote the formulation of international treaties on cross-border bankruptcy [insolvency], improve the coordination mechanisms for cross-border bankruptcy [insolvency] and protect the rights and interests of creditors and investors in accordance with the law…12.妥善处理跨境破产、金融、执行案件。 坚持同类债权平等保护原则，积极参与和推动跨境破产国际条约的制定，完善跨境破产协调机制，依法保护债权人和投资人权益。

This single issue illustrates the close reading skills needed to understand SPC Opinions.

Further analysis of the implications of the Arrangement will need to follow its release.

bankruptcy, insolvency

Supreme People’s Court & National Development & Reform Commission Solicit Public Comments on Bankruptcy (insolvency)-Related Policy Document

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Solicitation of public comments on the SPC website

This post focuses on one discrete but important initiative of the Supreme People’s Court (SPC)–improving its bankruptcy system. 

Late in the afternoon of 18 September, the Supreme People’s Court (SPC) and the National Development & Reform Commission (NRDC) separately posted on their official websites a solicitation of opinions/public consultation on a policy document directed towards improving measures related to China’s bankruptcy (insolvency)-system and ensuring that bankruptcy administrators can carry out their duties according to law 关于完善企业破产配套制度保障管理人依法履职 进一步优化营商环境的意见（征求意见稿).  The NRDC link is available here .  For some reason, the document has been posted as a Word document, but I have uploaded it here. It has been reposted on several Wechat accounts as well. As mentioned before, soliciting views from the public means that views “from the market” are needed. The usual practice when the SPC drafts policy documents is quite often soliciting the views of certain experts outside the court system in the drafting process (as well of many in the court system and in relevant departments).  This seems to be changing, as the SPC has solicited public opinion on several policy documents in the past year. As previously mentioned, soliciting views from the public requires high level internal approval at the SPC. The deadline for public comments is October 18, 2020, but presumably in practice a bit of flexibility is possible. The notice direct comments to be sent by fax to 86-10-67556808 or 86-10-68502342, or alternatively, by email to: pochanzhidu@163.com.  As will be clear from my brief summary, the document evidences the many complexities involved.

The document is linked to a multi-institutional document of over a year ago on reforming China’s system for improving entities exiting the market 加快完善市场主体退出制度改革方案, of which the SPC is only one of many institutions.

  As for what the practical link is to the real economy–one discrete example is that according to this report in the 21st Century Business Herald that as of early September, at least 500 real estate developers have made bankruptcy filings (compared to 450 for all of 2019).  The recent SPC policy document on the economy 为加快完善社会主义市场经济体制提供司法保障)has a paragraph that touches on many bankruptcy related issues (I regret to say I didn’t unpack that paragraph sufficiently), seen here:

As machine translated:

5. Improve the exit mechanism of judicial treatment for market players. Grasping the main line of supply-side structural reforms, in accordance with the requirements of the National Development and Reform Commission’s “Accelerating the Improvement of Market Entities Exit System Reform Program”, speed up the clearing of “zombie companies”, give full play to the rescue function of bankruptcy and reorganization, and strengthen the management of troubled but have operational value Protection and treatment of enterprises. Refine the implementation rules of the reorganization procedure, and strengthen the effective connection of the out-of-court reorganization system, the pre-reorganization system and the bankruptcy reorganization system. Improve the working mechanism for the government and the court to coordinate the handling of corporate bankruptcy incidents, and explore methods and measures to comprehensively manage corporate dilemmas and co-handle financial risks. Expand and extend the social functions of the bankruptcy system, and promote the establishment of a socialist market entity rescue and withdrawal mechanism covering various market entities such as for-profit legal persons, non-profit legal persons, unincorporated organizations, and natural persons. Improve cross-border bankruptcy and related enterprise bankruptcy rules, and promote the resolution of judicial problems such as cross-border bankruptcy and bankruptcy of complex entities. Further improve the procedures for the initiation and hearing of corporate bankruptcy, and increase the intensity of the implementation of transition to bankruptcy. Optimize the administrator system and management model, and promote the improvement of the protection mechanism and supporting policies for the rights and interests of relevant entities during the exit process of market entities. Strengthen the professionalization and informatization of bankruptcy trials, and improve the quality and efficiency of bankruptcy cases.

This blogpost will briefly summarize some of the main points in the document (primarily the headings of each article) with occasional quick comments in italics) and leave it to those with real expertise in this area to explain the issues in greater detail:

 basic principles:

1) Combination of guarantee and supervision. Relevant government departments and financial institutions shall actively support and cooperate with managers to independently perform duties such as taking over, investigating, and disposing of the property of bankrupt enterprises in accordance with the law…–this is consistent with China’s state-led economy.  (The role of a US bankruptcy administrator , for example is different) This basic principle is linked with 18) on “establishing a normalized government/courts unified coordinated system” (“要建立常态化的“府院破产统一协调机制”). 

Machine translation) of Article 18: Local people’s governments at all levels must actively support the people’s courts in bankruptcy trials, give full play to the government’s active role in bankruptcy procedures in accordance with the law, and avoid improper interference in bankruptcy judicial practices and the work of administrators. Encourage local people’s governments to establish a normalized coordination mechanism between government and courts. Relevant government departments responsible for maintaining social stability, funding guarantees, credit restoration, business cancellation, and corporate taxation should participate as member units.

In this late 2017 blogpost, I discussed some of the problems. A detailed article by a judge from Shanghai bankruptcy tribunal details many of the issues.  The #2 Circuit Court (its circuit is the northeastern provinces, China’s rustbelt) held a conference recently on bankruptcy in which a senior # Circuit Court judge commented on some of the issues:

(machine-translation) government-court linkage is not a new idea. It has been explored for nearly ten years and some experience has been accumulated, but the development is not sufficiently balanced and the results are hardly significant. The main reason is that on the one hand, judges do not have a clear understanding of the regularity and particularity of bankruptcy reorganization, and lack the initiative to communicate with the government; on the other hand, the government has insufficient knowledge of bankruptcy and has a tendency to stigmatize and avoid it. To this end, it is necessary to deepen the understanding of the necessity and importance of the linkage between the government and the court; to enhance the initiative of the court, especially the leading cadres of the court…

2. Strengthen data sharing and business collaboration. 

3. Employee protection;

4. Prevent debt evasion;

Improve information about changes in status of the bankrupt enterprise  

This title understates the content here, which includes:  

  1. independent public announcement system of bankruptcy status (and related public announcement issues);
  2. better implementing a simplified cancellation system of business registration for bankrupt enterprises;
  3. create registration system for the restriction of employment of relevant personnel in bankrupt enterprises– (linked to the social credit system, to make it more difficult for managers who caused a bankruptcy to be reemployed);
  4. Establishing and perfecting business processes that are connected with bankruptcy procedures--on support by involved financial institutions, but also mentioning systems for the bankruptcy of financial institutions (it appears we can expect more failures in the financial sector;
  5. Facilitate the opening and renewal of the administrator’s [bank ] account;
  6. Support the administrator to take over and investigate the debtor’s bank account;
  7. Assist and cooperate with the advancement of bankruptcy procedures, calling on banks to better cooperate in creditor committee procedures and mentioning again the bankruptcy of financial institutions–that the administrator must coordinate and communicate with the regulatory authorities to maintain the stability of the financial system (金融机构破产的，管理人与相关金融监管部门应当加强协调沟通，维护金融体系的稳定);
  8. Strengthen financing support for bankrupt and reorganized enterprises;
  9. Improve and reorganize the financial credit of enterprises, to make it possible for companies under reorganization to be eligible for credit.

Improve the handling of tax-related affairs of bankrupt companies

10. Guarantee the supply of necessary invoices for bankrupt enterprises (companies should coordinate with the tax authorities and vice versa);

11. Tax owed by the bankrupt enterprise shall be written off in accordance with the law;

12. Facilitate the cancellation of tax registration;

13. Restore the tax credit of enterprises (undergoing reorganization);

14. Implement the pre-tax deduction policy for income tax in the reorganization and settlement.

Improve asset disposal

15. Effectively activate land assets–this means ease procedures for the sale of land use rights;

16. Properly determine the ownership of assets;

17. Legally dissolve the property preservation measures of bankrupt enterprises–this is directed at better intergovernmental cooperation if a company undergoing bankruptcy procedures has had its property subject to some sort of asset freezing procedures;

Strengthening organizational guarantees

18. (set out above)

19. Strengthen information sharing, communication and coordination.

 

Solicitation of public comments on the NRDC website