In a further development to cross-border insolvency cooperation between Hong Kong and Mainland China, the Hong Kong Court has issued a letter of request to a Mainland Court requesting recognition and assistance of Hong Kong liquidators appointed over a Cayman company, under the mutual recognition arrangement introduced on 14 May 2021 (the “Arrangement“, see our previous update here), in Re Ozner Water International Holding Limited [2022] HKCFI 363.
The first case where the Hong Kong Court considered the relevant principles applicable to the issue of a letter of request was Re Samson Paper (which we wrote about here). However, the company in Re Samson Paper was incorporated in Hong Kong. In this case, the Hong Kong Court was asked to issue a letter of request in respect of a company incorporated in the Cayman Islands.
Background
The Arrangement applies to Hong Kong collective insolvency proceedings where the centre of main interests (COMI) of the debtor has been in Hong Kong continuously for at least six months. COMI generally means the place of incorporation of the debtor, but at the same time, other factors such as the principal place of business would also be considered.
Under the Arrangement, Hong Kong liquidators applying to the Mainland Court for recognition and assistance should submit, among other things, a letter of request issued by the Hong Kong Court.
Ozner Water International Holding Limited (“Ozner“) was incorporated in the Cayman Islands and registered in Hong Kong as a non-Hong Kong company. Its principal place of business was in Hong Kong. It had substantial assets in Shenzhen, one of the three cities in Mainland China designated as pilot cities under the Arrangement.
A winding-up petition was presented against Ozner by a creditor in respect of unpaid debts. The Hong Kong Court wound up and appointed liquidators (“Liquidators“) over Ozner.
The Liquidators applied to the Hong Kong Court for a letter of request, as a first step in seeking recognition and assistance in Shenzhen, in order to take possession of and deal with Ozner’s assets there.
Key points highlighted by the Hong Kong Court
Referring to his judgment in Re Samson Paper, Mr Justice Harris found that issuing a letter of request would be consistent with established principles and the Arrangement:
- On the basis of the evidence, Ozner’s COMI was in Hong Kong.
- Ozner was in compulsory insolvent liquidation with its principal Mainland assets in Shenzhen.
- The Liquidators have a duty to carry out asset collection.
- The assets over which the Liquidators sought control via Mainland recognition were assets in the Mainland, thus the Mainland Court would be the most appropriate forum to determine the Liquidators’ powers over Mainland assets.
- Under Hong Kong law, the Liquidators have statutory power to commence proceedings outside of Hong Kong to perform their functions.
Mr Justice Harris therefore considered it a proper case to issue a letter of request, noting that the Shenzhen Court had recently granted relevant recognition and assistance to the liquidators in Re Samson Paper to carry out asset collection efforts in the Mainland.
Comments
This was the first case in which a Hong Kong Court has issued a letter of request in relation to a non-Hong Kong company under the New Arrangement.
However, it should be noted that the Liquidators were appointed by the Hong Kong Court in the winding-up proceedings commenced under Hong Kong law and that there was sufficient evidence to demonstrate the non-Hong Kong company’s COMI was in Hong Kong. The Arrangement would not apply to liquidators appointed outside of Hong Kong, as the Arrangement is expressed to apply only to collective insolvency proceedings commenced under Hong Kong law.
For further information, please contact:
Jojo Fan, Partner, Herbert Smith Freehills
jojo.fan@hsf.com
