Title Securities & Futures Commission V China Metal Recycling (Holdings
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CORE Metadata, citation and similar papers at core.ac.uk Provided by HKU Scholars Hub Securities & Futures Commission V China Metal Recycling Title (Holdings) Limited: Regional Conflict of Laws, Judicial Recognition and Hong Kong-China Cross-Border Insolvencies Author(s) Lee, EH Securities & Futures Commission V China Metal Recycling (Holdings) Limited: Regional Conflict of Laws, Judicial Citation Recognition and Hong Kong-China Cross-Border Insolvencies. In Sarra, JP and Romaine, JB (Eds.), Annual Review of Insolvency Law, p. 599-623. Toronto: Carswell, 2014 Issued Date 2014 URL http://hdl.handle.net/10722/201539 Rights Creative Commons: Attribution 3.0 Hong Kong License Securities & Futures Commission v China Metal Recycling (Holdings) Limited: Regional Conflict of Laws, Judicial Recognition and Hong Kong-China Cross-Border Insolvencies Emily Lee* I. INTRODUCTION Using the recently adjudicated landmark case in Hong Kong of Securities and Futures Commission v China Metal Recycling (Holdings) Limited1as a launching board this article discusses and analyzes the complexities surrounding cross-border (corporate) insolvencies (“CBIs”) between Hong Kong and mainland China (HK-China CBI). Going forward, HK-China CBI will have a direct bearing on decisions made by Hong Kong and Chinese courts; since they are already increasingly requested to adjudicate on the same issues during a corporate insolvency, a new mechanism is called for in order to provide a practical and economically viable resolution to the regional conflict of laws issue arising from Hong Kong and mainland China having different insolvency laws in spite of Hong Kong being a part of mainland China, although a special administrative region within it. A new mechanism should focus on the judicial recognition of judgments and court orders concerning insolvencies of companies with establishments in both Hong Kong and mainland China; and if a new mechanism is properly implemented, it can more effectively and holistically facilitate resolution of the regional conflict of laws issue that typically arise during the insolvency procedure of a Hong Kong-listed company with subsidiary companies located in mainland China. Without such a mechanism in place, the provisional liquidators appointed in Hong Kong will need to devise a more convoluted resolution method in order for them to be approved by the Chinese court before they can take control of the Chinese subsidiary companies. Moreover, without a new mechanism, there will be duplication of insolvency procedures and costs and there may be incentives for forum shopping. The landmark case is significant because it is the first-ever instance of the securities industry regulator (i.e., Securities and Futures Commission (SFC)) making a petition to the Hong Kong Court of First Instance for winding-up of a Hong Kong-listed company (i.e., China Metal Recycling (Holdings) Limited). The case has a cross-border aspect because the provisional liquidators 2 appointed by the Hong Kong court had to seek recognition from the Chinese court * Dr. Emily Lee, Assistant Professor, Faculty of Law, The University of Hong Kong; Affiliated International Scholar, National Centre for Business Law in Vancouver, Canada. I would like to thank Professor Dr. Janis Sarra, Director of Peter Wall Institute for Advanced Studies at The University of British Columbia, for inviting me to present this paper at the 2015 Annual Insolvency Law Conference in Toronto, Canada. 1 Securities and Futures Commission v China Metal Recycling (Holdings) Limited HCCW 210/2013. 2 In Hong Kong, provisional liquidators could be (1) the Official Receiver who automatically becomes the provisional liquidator when a court winding-up order is made against a company; (2) a private sector insolvency practitioner appointed by the Official Receiver pursuant to s.194(1A) of the (Hong Kong) Companies Ordinance (Cap 32); (3) a private sector insolvency practitioner appointed by the Hong Kong High Court under s.193 of the Companies Ordinance (Cap 32); or (4) the person appointed by the directors of a company which is undergoing voluntary liquidation under s.228A of the Companies Ordinance (Cap 32), to safeguard and protect the assets of the company. However, the circumstances in which s.228A can now be employed are very limited. Arguably, the traditional (and most important) kind of appointment of provisional liquidator is that which is made pursuant to 1 Electronic copy available at: http://ssrn.com/abstract=2562755 before they can take control of the subsidiary companies of the Hong Kong-listed company that are located in mainland China. Part one of this article starts with an introduction and part two explains why judicial recognition and assistance, which is required for enforcing judgments or orders on HK-China CBI cases, is a matter of regional conflict of laws. Part three provides the background of the landmark case in Hong Kong whose importance and legal implications are discussed in part four. Part five examines an associated case to illustrate the landmark case’s distinguishing CBI elements. Further comments and observations about the landmark case are afforded in part six. Part seven features the fundamental challenges confronting HK-China CBI dispute resolutions. Some concluding remarks are made in part eight. II. REGIONAL CONFLICT OF LAWS The landmark case creates tension to a long-standing issue: how a judgment or order made by a Hong Kong court can be directly enforceable in mainland China, and vice versa, without a formal judicial recognition mechanism available to courts on both sides. Since Hong Kong’s reversion to Chinese sovereignty on 1 July 1997, the conflict between Hong Kong and mainland Chinese laws falls into the realm of “regional conflict of laws”,3 owing to Hong Kong’s status as a Special Administrative Region (SAR) of China: a SAR is a subordinated region of its Sovereign (China) and not an independent state. The signing of the Joint Declaration of the Government of the People’s Republic of China and the Government of the United Kingdom of Great Britain and Northern Ireland on the Question of Hong Kong (Sino- British Joint Declaration)4 on 19 December 1984 declared that Hong Kong would be returned to China as the Hong Kong Special Administrative Region (HKSAR) on 1 July 1997. The Sino- British Joint Declaration was an agreement between China and the United Kingdom (UK), guaranteeing Hong Kong’s freedoms and pluralism under the rule of law for 50 years starting from 1 July 1997. In fact, Hong Kong and mainland China have different insolvency laws: in Hong Kong, although it does not have a uniform corporate insolvency law, statutory provisions relating to corporate insolvency are embedded in the Companies Ordinance5 and its subsidiary legislation such as the Companies (Winding-up) Rules; in mainland China, the Enterprise s.193 of the Companies Ordinance (Cap 32) (i.e., type (3) as noted above). In fact, the two provisional liquidators appointed by the Hong Kong court in the main cases discussed herein concerning China Metal Recycling (Holdings) Limited are the traditional kind of appointment. 3 Xianchu Zhang and Philip Smart, “Development of Regional Conflict of Laws: On the Arrangement of Mutual Recognition and Enforcement of Judgments in Civil and Commercial Matters between Mainland China and Hong Kong SAR” (2006) 36 Hong Kong Law Journal 553. 4 Joint Declaration, Questions of Hong Kong, http://www.legislation.gov.hk/blis_ind.nsf/CurAllEngDoc/034B10AF5D3058DB482575EE000EDB9F?OpenDocu ment (last visited 8 July 2014). 5 The Laws of Hong Kong, Companies Ordinance (Cap 32). Available at http://www.legislation.gov.hk/blis_pdf.nsf/4f0db701c6c25d4a4825755c00352e35/BFBC0BDE18CA0665482575EE 0030D882/$FILE/CAP_32_e_b5.pdf (last visited 15 July 2014). 2 Electronic copy available at: http://ssrn.com/abstract=2562755 Bankruptcy Law (EBL)6 is China’s uniform corporate insolvency law. Besides the difference in its corporate insolvency laws, mainland China is a country with civil law traditions while Hong Kong is a common law jurisdiction through adoption of the English common law; also, Hong Kong’s Companies Ordinance (particularly those provisions in relation to corporate insolvencies) is heavily influenced by the UK’s Insolvency Act of 1986. Therefore, due to different insolvency laws in mainland China and Hong Kong, which are guided by different legal traditions, CBIs that straddle both these jurisdictions are known as “HK-China CBI cases” and often involve the complex regional conflict of laws issue that have caught the interest and attention of private sector insolvency practitioners, insolvency law academics and government policy makers in mainland China and Hong Kong. 1. The Sino-British Joint Declaration Before Hong Kong was returned to Chinese sovereignty, Hong Kong was regarded as a foreign jurisdiction by mainland China. Ironically, even after the return of Hong Kong to China in 1997, Hong Kong is still regarded as a foreign jurisdiction by China; this may be evidenced by a judicial interpretation issued in 2002 by the Supreme People’s Court in China titled ‘Provisions Concerning the Jurisdiction Problems of Foreign-related [emphasis added] Civil and Commercial Cases’, whose Article 5 prescribes that “the jurisdiction of civil and commercial cases involving HKSAR, Macao SAR and Taiwan litigants shall be solved by referring to the Provision”.7 Under the rubric of ‘one country, two systems’, two judicial systems (in Hong Kong and mainland China, respectively) began to operate in parallel within one country.8 Guobin Zhu suggested that conflict of laws between China and HKSAR “is seen in a ‘vertical’ sense, so it cannot be regulated by an analogy of general conflict of laws rules”.9 On the other hand, if the conflict of laws is between the HKSAR and a province or another autonomous region in China, then such a conflict would be treated at a horizontal level.10 This horizontal level classification has inspired academics to invent the theory of regional conflict of laws (also referred to by some commentators such as Goubin Zhu as ‘inter’ regional conflict of laws) in order to cope with conflict of laws cases involving the courts in Hong Kong and the courts in mainland China.