Hong Kong Corporate Insolvency Manual, 3rd Edition (Published in association with HKICPA - Hong Kong Institute of Certified Public Accountants)

Foreword to the Third Edition
Foreword to the Second Edition
Foreword to the First Edition
Preface to the Third Edition
Preface to the Second Edition
Preface to the First Edition
About the Authors
Table of Abbreviations
Table of Cases
Table of Legislation

Chapter 1: Introduction
1.1 What is Insolvency?
1.2 The Role of the Insolvency Practitioner
1.3 The Insolvency Regime in Hong Kong
1.4 Types of Winding Up
1.5 Dissolution
1.6 Other Introductory Points

Chapter 2: Members' Voluntary Liquidation
2.1 Introduction
2.2 Main Features
2.3 Procedure
2.4 Company Becomes Insolvent Post-Resolution
2.5 Effect of a Members' Voluntary Liquidation on Directors
2.6 The Liquidator: Vacancy in Office, Resignation & Removal
2.7 Duties of the Liquidator
2.8 Section 237 Arrangements (Reconstructions)

Chapter 3: Creditors' Voluntary Liquidation
3.1 Introduction
3.2 General
3.3 Meeting of Members (Shareholders)
3.4 Convening a Meeting of Creditors (Section 241)
3.5 Conduct of the Section 241 Creditors' Meeting
3.6 Business of Creditors' Meeting
3.7 The Committee of Inspection
3.8 Special Procedure for Voluntary Liquidation under Section 228A

Chapter 4: Compulsory Liquidation
4.1 Introduction
4.2 Section 177(1): The Grounds
4.3 Who May Present a Winding-Up Petition?
4.4 The Petition
4.5 Before the Hearing of the Petition
4.6 The Hearing
4.7 Post-Hearing
4.8 Liquidator's (and Special Manager's) Appointment
4.9 First Meetings (Section 194)
4.10 Summary Cases (Section 227F)
4.11 Regulating Orders (Section 227 A)
4.12 Staying the Winding Up
4.13 Interaction between Compulsory Liquidation, Voluntary Liquidation and Receivership
4.14 Conversion of Compulsory Liquidation to CVL

Chapter 5: Liquidators' Duties
5.1 Liquidators: Ethical Considerations
5.2 Liquidators' General Powers
5.3 Other Powers
5.4 Removal of Liquidators
5.5 Summary

Chapter 6: Liquidators' Investigations and Litigation Funding
6.1 Introduction
6.2 Insolvency Guidance Notes
6.3 Liquidator's Investigations - Some Practical Guidance
6.4 Private Examination (Section 221)
6.5 Public Examination (Section 222)
6.6 Misfeasance Proceedings (Section 276)
6.7 Litigation Funding by Third Parties
6.8 Summary

Chapter 7: Voidable Transactions and Fraudulent and Insolvent Trading
7.1 Introduction
7.2 Unfair Preferences
7.3 Transactions at an Undervalue
7.4 Extortionate Credit Transactions (Section 264B)
7.5 Floating Charges (Section 267)
7.6 Summary and Comparison Table
7.7 Fraudulent Conveyances
7.8 Fraudulent Trading: Introduction
7.9 Fraudulent Trading: Analysis
7.10 Insolvency Trading
7.11 Comparison of Fraudulent and Insolvent Trading

Chapter 8: The Asset Protection Regime
8.1 Introduction
8.2 Actions or Proceedings against the Company
8.3 Executions and Attachments
8.4 Distress
8.5 Post-commencement Dispositions: Section 182
8.6 Retention of Title
8.7 The Anti-Deprivation Principle
8.8 Liens - The Oasis v HAECO Case
8.9 Comparison of Compulsory Winding Up and CVL Provisions

Chapter 9: Proofs of Debt and Priority
9.1 Introduction
9.2 Debts For Which A Creditor May Prove
9.3 Debts That Are Not Provable in a Hong Kong Insolvency
9.4 Claiming for Interest
9.5 Proving for Voting and Dividend Purposes
9.6 Special Cases
9.7 Notice to Creditors to Prove
9.8 Rejection of Proofs of Debt
9.9 Expunging Proofs of Debt
9.10 Order of Payment
9.11 Summary of Proofs and Dividends

Chapter 10: Charges and Receivership
10.1 Introduction and Terminology
10.2 The Distinction Between Fixed and Floating Charges
10.3 Priority of Charges
10.4 Receivership: Outline
10.5 Duties and Powers of Receivers
10.6 Accounts
10.7 Contracts
10.8 Transfer of Businesses (Protection of Creditors) Ordinance (Cap 49)
10.9 Distribution of Company's Assets
10.10 Checklist

Chapter 11: Corporate Rescue and Restructuring
11.1 Introduction
11.2 Workouts and the HKABIHKMA Guidelines
11.3 Schemes of Arrangement
11.4 Recent Developments: Provisional Liquidation and Corporate Rescue
11.5 Provisional Supervision

Chapter 12: Directors' Disqualification
12.1 Introduction
12.2 Terms of a Disqualification Order under Part IVA
12.3 Grounds for a Disqualification Order
12.4 Procedure Regarding the 'Unfitness' Ground
12.5 Directors' Offences

Chapter 13: Liquidators' Remuneration
13.1 Introduction
13.2 Past Controversies: Maxwell and Peregrine
13.3 Lehman Brothers - Not Quite So Controversial
13.4 Current Position

Chapter 14: PRC Bankruptcy Law
14.1 Introduction
14.2 Problems with the Old Law
14.3 Scope of the EBL
14.4 Petitioning for Bankruptcy
14.5 The Independent Administrator
14.6 Remuneration of the Administrator
14.7 Creditors' Committee.
14.8 Priority in Distribution
14.9 Avoidance Provisions
14.10 Reorganisation and Conciliation
14.11 Cross-Border Insolvency
14.12 Summary

Chapter 15: Cross-Border Insolvency
15.1 Introduction
15.2 Approaches for Resolving Cross-Border Insolvency Issues
15.3 Recognition of Foreign Insolvencies
15.4 Options Available to Foreign Representatives for Gathering Information and Protecting Assets of Foreign Debtors in Hong Kong
15.5 Options Available to Hong Kong Liquidators for Protecting Assets of Hong Kong Corporate Debtors Abroad
15.6 Corporate Group Insolvencies
15.7 Need for Legislative Reform

Appendix 1: Members' Voluntary Liquidation Checklist
Appendix 2: Insolvency Checklist and Prepack: Section 228A and Section 241 Creditors' Voluntary Liquidation
Appendix 3: Statutory Demand under Section 178(1)(A) of the Companies (Winding Up and Miscellaneous Provisions) Ordinance (Chapter 32)
Appendix 4: Specimen Powers of a Provisional Liquidator Appointed pursuant to s 193
Appendix 5: Section 500 of HKICPA's Code of Ethics for Professional Accountants
Appendix 6: Insolvency Checklist Compulsory Liquidation
Appendix 7: Insolvency Guidance Notes
Appendix 7A: Statement 1.600 Insolvency Guidance Note (1) - Scope (Effective for insolvency appointments made on or after 1 October 2005)
Appendix 7B: Statement 1.601 Insolvency Guidance Note (2) - A Liquidator's Investigation into the Affairs of an Insolvent Company (Effective for insolvency appointments made on or after 1 October 2005)
Appendix 7C: Statement 1.602 Insolvency Guidance Note (3) - Preparation of Insolvency Office-Holders' Receipts and Payments Accounts (Effective for insolvency appointments made on or after 1 October 2005)
Appendix 7D: Statement 1.603 Insolvency Guidance Note (4) – Disqualification of Directors - Statutory Reports (Effective for insolvency appointments made on or after 1 October 2005)
Appendix 8: Official Receiver's Office - Panel A Rules: Rules for Admission of Firms and Persons for Taking-up Appointment of Liquidators or Special Managers in Non-Summary Court Winding-up Cases
Appendix 9: HKICPA Professional Diploma in Insolvency
Appendix 10: The BVI and Cayman Islands Insolvency Regime Summary
Index

Charles D Booth is a professor of Law at the William S Richardson School of Law at the University of Hawaii and is the Founding Director of the Institute of Asian-Pacific Business Law (‘IAPBK’). He is a Co-Designer and a Co-Director of the Professional Diploma in Insolvency Course run by the HKICPA. He is also a Special Counsel at Sheppard Mullin and a Senior Advisor at Burford Capital. He taught in the faculty of Law at the University of Hong Kong from 1989 to 2005 and has been teaching and writing about Hong Kong and Chinese insolvency law for more than 25 years. He has served as a consultant on insolvency and commercial law reform projects for many international organizations including the World Bank, the Asian Development Bank, the EBRD , the OECD, the ABA-UNDP, and the IDLO. He has been involved in projects in China, Hong Kong, Vietnam, Mongolia, and Vanuatu, and in Europe and Asia generally.

Stephen Briscoe has worked full-time on insolvency, corporate recovery and corporate advisory assignments since 1973. He worked for 11 years for the Official Receiver in the United Kingdom before moving into private practice and has considerable experience in investigations, liquidations, and trading receiverships, particularly in the manufacturing, service and leisure industries. He has practiced in Hong Kong since 1997 where he has acted as liquidator or receiver of several hundred insolvent companies.

He is Co-Director of the Professional Diploma in Insolvency Course run by the HKICPA. He is the convenor of the technical committee of the Restructuring and Insolvency Faculty of the HKICPA, and is on the editorial board of the monthly INSOL Electronic Newsletter. He has written a number of articles in INSOL magazine, the RIFEC insolvency newsletter and regularly speaks at conferences and seminar. He is also a board director of INSOL International.

He is the managing director of Briscoe Wong Ferrier, which specializes in corporate recovery, including restructuring; liquidations and receiverships; corporate advisory assignments; and forensic accounting and litigation support in Hong Kong, the PRC and a number of offshore jurisdictions.

ELG Tyler was former Professor of Law at the University of Hong Kong and City University of Hong Kong, District Judge Hong Kong, Senior Assistant Law Officer, Commercial 111 (Companies Ordinance Rewrite team), Department of Justice HKSARG.

Professor Tyler came to Hong Kong in 1985 from Australia. He was a professor at the University of Hong Kong from 1985 to 1991, when he became a District Court Judge. He returned to academia in 1994 to City University of Hong Kong and retired from there back to Australia in 2005. In 2007 he returned to Hong Kong to a temporary position in the Commercial Unit, Civil Division, and Department of Justice working on the Companies Ordinance Rewrite (the new Companies Ordinance was passed in July 2012). He subsequently worked on the Improvement of Corporate Insolvency Law exercise until the completion of his contract at the end of 2014 when he retired back to Australia. Professor Tyler has lectured and written on Hong Kong Company Law for the past 25 years.