The recent case China Fishery Group Limited(1) concerned a rather bold request for judicial assistance by the Chapter 11 trustee of a company within the China Fisheries Group. The trustee had applied to use documents from related Hong Kong winding-up proceedings in a US bankruptcy court. However, the application was firmly rejected by a High Court judge in Hong Kong for failure to establish a relevant connection to the jurisdiction in which the trustee had been appointed. In reaching its decision, the court also took into account significant public policy concerns relating to the underlying Chapter 11 proceedings in which the trustee had been appointed. The judgment provides a useful reminder of the common law criteria to be applied for recognition of foreign office holders – however, a more interesting point, perhaps, is that the Hong Kong courts will not be afraid to defend the integrity of their orders if and when attempts are made to circumvent them.
The case related to an ex parte application by the Chapter 11 trustee of CFG Peru Investments Pte Limited for permission to use a decision and reasons of the Hong Kong court (the decision) in winding-up proceedings relating to China Fishery Group Limited and China Fisheries International Limited (the companies).(2) The trustee sought to use the decision in the US proceedings. The winding-up proceedings had been commenced by HSBC and the decision provided for the discharge of the joint and provisional liquidators of the companies.
Upon appointment, the trustee had obtained a discovery order against HSBC from the US bankruptcy court.(3) The discovery order covered the decision which was said to be required for the companies and various other members within the China Fisheries Group (the debtors) to determine whether they had any claims against HSBC(4) or defences to claims against their estates. The present application for permission was necessary as the hearing giving rise to the decision was in chambers (not open to the public) and the reasons were marked "Not Open to the Public" and "No search, inspection or publication without leave of the court".
HSBC opposed the application on the grounds that:
- the trustee had failed to demonstrate sufficiently good reasons; and
- the court should not exercise its discretion to permit the application and allow the companies to benefit from their allegedly egregious conduct.
HSBC had earlier withdrawn its appeal of the decision on the basis of undertakings given by the companies pursuant to a deed between the parties. The deed provided for the companies to sell certain assets in order to repay HSBC and was given additional force by orders of the courts of Hong Kong and the Cayman Islands.
Shortly before the date for repayment pursuant to the deed, the debtors filed Chapter 11 proceedings in the US Bankruptcy Court for the Southern District of New York. The debtors had no operations in or connections to the United States and jurisdiction was founded solely on the basis of a retainer previously paid to US counsel(5) and a New York governing law clause in certain notes issued by one of the debtors. Upon filing the Chapter 11 proceedings, there was an automatic stay prohibiting the commencement or continuation of proceedings against the debtors.(6)
The companies' conduct was described as egregious given that its management appeared to have no intention of making repayment and the Chapter 11 proceedings had apparently been commenced as a means of preventing HSBC from taking action for breach of the deed and the court order in Hong Kong.
In considering the application, the High Court judge acknowledged that the court had an inherent jurisdiction to control access to documents in its possession as a consequence of proceedings before it. The judge also referred to the open justice principle, which provides that a judicial process should be conducted openly and should be restricted only if substantial and relevant reasons for doing so are demonstrated.(7)
In the companies court context, certain restrictions are necessary to ensure the proper and just administration of certain types of matter. Applications for provisional liquidators are proceedings which are not usually open to the public.(8) The justification for this is the avoidance of the commercial damage that might result from an unjustified application becoming general knowledge.
While recognising that this provided the starting point, the judge considered the presumption that justified holding the application in private had ended and it was now necessary to consider the position afresh. On this basis, the appropriate starting point was to consider the status of the trustee and the reasons why he sought to lift the restriction.
The trustee's position was that he had substantial and genuine reasons for wanting to use the decision founded on his mandate under the US Bankruptcy Code and was entitled to seek disclosure on the basis of the open justice principle.
The judge noted that the courts of common law jurisdictions do not recognise and assist all foreign insolvency proceedings and office holders. The recognition of Chapter 11 proceedings in the Hong Kong courts had not previously been determined and the judge considered that it was neither necessary nor appropriate to express a view on this issue in the present case.
In the judge's opinion, the trustee could not satisfy the relevant criteria for the recognition and assistance of foreign office holders. While the judge was satisfied that the trustee had been appointed in collective insolvency proceedings, he was firmly of the view that there was no relevant connection between the members of the group company and the US bankruptcy court's jurisdiction.(9) On this ground, the judge found that there was no basis for recognising the trustee's office or providing assistance thereto.
Accordingly, the judge dismissed the application. The judge also stated that even if the trustee had established a relevant connection to the jurisdiction, it was likely that he would have refused to recognise the Chapter 11 proceedings on public policy grounds. The judge considered that the Chapter 11 proceedings had been commenced to prevent HSBC from enforcing the deed. The deed contained undertakings to the Hong Kong court and it was (in the judge's words) self-evidently objectionable and an affront to the court for proceedings to be undertaken in another jurisdiction with a view to hindering enforcement.
The application and factual background to the case are somewhat unusual for a number of reasons as acknowledged by the court.
The recognition of Chapter 11 proceedings is an issue upon which the Hong Kong courts have not previously decided. While it would have been interesting to see how the court dealt with this issue, given the lack of authority (both in Hong Kong and other common law jurisdictions), the application did not even get off the ground due to the lack of a relevant connection to the jurisdiction in which the trustee was appointed.
There were strong grounds to support the judge's view that the relevant criteria had not been met and that the trustee should not be entitled to recognition or assistance based on common law principles. However, the judge's decision to reject the application was reinforced by a more interesting public policy point. The judge considered that the trustee's appointment was possible only as a consequence of the companies entering into the deed and giving undertakings to the Hong Kong court which they apparently had no intention of honouring. From the court's perspective, the Chapter 11 proceedings were unconscionable and an abuse, and it was only as a result of this objectionable conduct that the application to appoint the trustee became possible.
In the circumstances, the trustee's application is rather surprising given that it was made in the context of Chapter 11 proceedings which (in turn) appear to have been an attempt to try and circumvent an order of the Hong Kong court and thwart the bank's attempts at enforcement. What is not surprising is the Hong Kong court's response in giving short shrift to the trustee's application.
For further information on this topic please contact Michael Maguiness or Warren Ganesh at RPC by telephone (+852 2216 7000) or email ([email protected] or [email protected]). The RPC website can be accessed at www.rpc.co.uk.
Endnotes
(1) [2019] HKCFI 174, HCMP 134/2018, 14 January 2019. Application dismissed. The trustee was ordered to pay the bank's costs and it will be interesting to see if these are ordered to be paid on a higher (indemnity) basis.
(2) Decision dated 5 January 2016 and reasons for decision handed down on 17 March 2016 in HCCW 367 and 368 of 2015.
(3) The discovery order had been unsuccessfully appealed by HSBC.
(4) The trustee commenced proceedings against HSBC in New York alleging impermissible conduct. Such alleged conduct extended to (among other things) HSBC's application for the appointment of provisional liquidators, which is why permission to use the decision was sought.
(5) Apparently, this is not an uncommon basis for giving the US bankruptcy court jurisdiction.
(6) Pursuant to Section 362 of the US Bankruptcy Code.
(7) SJ v FTCW [2014] 1 HKLRD 849, Lam JA [28, 114]; ATV v Communications Authority [2013] 3 HKC 66, Cheung CJHC [19-32]. Also see High Court Practice Direction 25.1.
(8) Part 3 of Schedule 2 of Practice Direction 25.1.
(9) The requirement for there to be a relevant connection between the company and the foreign jurisdiction in which the office holder has been appointed is uncontroversial and follows from reasoning in cases such as Singularis Holdings Ltd v PricewaterhouseCoopers [2015] AC 1675, Gulf Pacific Shipping Ltd [2016] SGHC 287 and Supreme Tycoon Ltd [2018] 2 HKC 485.
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