Corporate Restructuring & Insolvency Asia 2020 - ebook

Asian Business Law Institute

Launched in January 2016, the Asian Business Law Institute (ABLI), a subsidiary of the Singapore Academy of Law, is a permanent institute based in Singapore that initiates, conducts and facilitates research with a view to providing practical guidance in the field of Asian legal development and promoting the convergence of Asian business laws. Its mission is to remove unnecessary or undesirable differences between Asian legal systems that pose obstacles to free and seamless trade.

ABLI’s long-term strategic direction in accordance with its aims is set by its Board of Governors chaired by The Honourable the Chief Justice Sundaresh Menon of the Supreme Court of Singapore. The Board comprises representatives from Australia, China, India and Singapore and other internationally renowned legal experts.

International Insolvency Institute (III)

The International Insolvency Institute (III) is a non-profit, limited-membership organisation dedicated to advancing and promoting insolvency as a respected discipline in the international field. Its primary objectives include improving international co-operation in the insolvency area and achieving greater co-ordination among nations in multinational business reorganisations and restructurings, with membership drawn from the most senior and respected insolvency practitioners, judges and academics in the world and it has valuable liaisons with many of the most senior regulatory and administrative professionals in the insolvency field.

III, due to its exceptional membership, its international leadership, and its resources, plays a valuable and highly significant role in the international insolvency field. It has achieved a worldwide reputation and is developing into a catalyst for improvement and change in the international insolvency area that has few, if any, equals.

“Mayer Brown embraced participation in the project launched by the Asian Business Law Institute on the publication of Corporate Restructuring and Insolvency in Asia. The Asia Pacific region covers diverse legal regimes some with their roots in with civil law and others having common law backgrounds. This variability is compounded by differences in the development of restructuring and insolvency laws, with some hanging to antiquated concepts of the past and others embracing modern frameworks and concepts for dealing with restructuring and insolvency , including the accession to international treaties such as the UNCITRAL Model Law on Cross Border Insolvency. This variability results in legal concepts, practices and procedures that are markedly different from country to country. The ability to draw together eminent practitioners and legal scholars to give their insights and understanding of how the law actually works in these 16 jurisdictions, is invaluable to anyone involved in the practice of restructuring and insolvency. Mayer Brown wishes the ABLI every success with the promotion of this publication.”

"This publication, contributed by dedicated practitioners in the Asia-Pacific region, gives businesses a collective perspective of restructuring and insolvency in an economically diverse part of the world. This publication tells businesses that there is always hope when their corporate vessels sail into troubled waters, especially today where the world faces a crisis as a result of the Covid-19 pandemic. Lee Hishammuddin Allen & Gledhill, Malaysia, is honoured and proud to be given the opportunity to contribute and participate in this publication."

Index

Foreword (pp. v–viii)

James Allsop AO and Kannan Ramesh

Australia (pp. 1–71)

Reporters: Maria O’Brien and Timothy Sackar

Introduction to Australian Insolvency Law Regime
Voluntary Administration
Schemes of Arrangement
Recognition of Foreign Insolvency Procedures in Australia
Appendix of Legislation Referred To

Brunei (pp. 72–103)

Reporter: Nava Palaniandy

Overview
Corporate Rescue Mechanism
Insolvency Practitioners
Rescue Financing
Ordinary and Special Contracts
Miscellaneous
Appendix of Legislation Referred To

Cambodia (pp. 104–147)

Reporter: Jay Cohen

Introduction
Rescues: Out-Of-Court and In-Court
Support Structures
Insolvency Office-Holders
Directors or Managers of Distressed Entities
Conversion of Proceedings
Rescue Financing
Effect of the Stay and Moratorium
Ordinary and Special Contracts
Ranking, Priority and Resolution of Creditor Claims
Treatment of Foreign Creditors
Creditor Supervision of Proceedings
Employment, Stakeholding and Pension Issues
Avoidance and Clawback Rules and Safe Harbour Provisions
Rescue Plans and Sales as a Going Concern
Group Insolvencies
Small & Medium-Sized Enterprises
International and Cross-Border Insolvency Law
Other Matters
Appendix of Legislation Referred To

China (pp. 148–196)

Reporters: Shen Yuhan and Peng Fei

Preliminary Outline
Insolvency Proceedings Under the Bankruptcy Law
Commonalities Among Bankruptcy Proceedings
Zero-Asset Bankruptcy
Duties & Responsibilities of Directors and Managers of Distressed Debtors
Restructuring In and Out of Court
Treatment of Enterprise Groups in Insolvency
Reorganisation of Listed Companies
Creditor Ranking and Rescue Financing
Mediation
Foreign Creditors and Cross-Border Insolvency
Statistics and Access to Information
Appendix of Legislation Referred To

Hong Kong SAR (China) (pp. 197–267)

Reporter: Tom Pugh

Introduction
Rescues: Out-of-Court & In-Court (Governance & Supervision)
Support Structures (Courts and State Agencies)
Directors of Distressed Entities
Rescue Financing
Moratorium
Contracts
Creditors and Creditor Claims
Employment Issues
Avoidance and Clawback Rules and Safe Harbour Provisions
International and Cross-Border Insolvency Law
Appendix of Legislation Referred To

India (pp. 268–317)

Reporter: Pulkit Gupta

The Insolvency and Bankruptcy Code Overview
Institutional Framework for the Insolvency and Bankruptcy Code, 2016
Corporate Insolvency Resolution Process
Role of Directors and Managers of Distressed Entities
Fees and Financing
Avoidance Transactions
Micro, Small and Medium-Sized Enterprises
Insolvency Resolution Outside the Insolvency and Bankruptcy Code, 2016
Cross-Border Insolvency
Insolvency of Group Companies
Appendix of Legislation Referred To

Indonesia (pp. 318–357)

Reporters: Indri Pramitaswari “Mita” Guritno; Kadir, Andi Y; Timur Sukirno and Agung Wijaya

Introduction
Private Restructuring and Court-Supervised Proceedings
Roles of the Commercial Court and State Agencies
Management of Distressed Entities
Conversion from PKPU to Bankruptcy
Employment Issues
Clawback Procedures
Rescue Plans
Costs of Proceedings
International and Cross-Border Insolvency Law
Appendix of Legislation Referred To

Japan (pp. 358–416)

Reporters: Shinichiro Abe, Shinnosuke Fukuoka, Yosuke Kanegae and Zentaro Nihei

Preliminary Outline
Rescues: Out-of-Court and In-Court
Group Insolvency
Small and Medium-Sized Enterprises
International and Cross-Border Insolvency Law
Statistics

Lao (pp. 417–436)

Reporters: Lee Hock Chye and Ketsana Phommachane

Overview
Current Rescue Mechanisms
Other Matters Under The Existing Mechanism
Law Reform
Appendix of Legislation Referred To

Malaysia (pp. 437–488)

Reporter: Andrew Chiew Ean Vooi

Corporate Insolvency Laws Overview
Rescues: Out-of-Court and In-Court
Group Insolvency
Miscellaneous
Appendix of Legislation Referred To

Myanmar (pp. 489–532)

Reporter: Scott Atkins

Preliminary Outline
Rescues: Out-of-Court and In-Court
Support Structures (Courts and State Agencies)
Insolvency Office-Holders
Directors and Managers of Distressed Entities
Conversion of Proceedings
Rescue Financing
Effect of Stay and Moratorium
Ordinary and Special Contracts
Ranking, Priority and Resolution
Creditor Supervision of Proceedings
Avoidance and Clawback Rules and Safe Harbour Provisions
Rescue Plans and Sales As A Going Concern
Micro, Small and Medium-Sized Enterprises
Appendix of Legislation Referred To

Philippines (pp. 533–586)

Reporter: Antonio Jose Gerardo T Paz

A brief Overview of The Philippines Legal System
Insolvency Laws in The Philippines
Rehabilitation Proceedings
Conversion to Liquidation Proceedings
Treatment of Foreign Creditors or Corporations
Liabilities of Directors and Officers
Treatment of Contracts
Clawback Rules and Safe Harbour Provisions
Foreign Proceedings
Conclusion and Recommendation
Appendix of Legislation Referred To

Singapore (pp. 587–666)

Reporters: Manoj Pillay Sandrasegara and Sim Kwan Kiat

Introduction
Corporate Rescue Mechanism
Actors and Institutions in Insolvency Proceedings
Avoidance and Clawback Rules and Safe Harbour Provisions
Employment, Stakeholding and Pension Issues
Small and Medium-Sized Enterprises
International and Cross-Border Law
Statistics
Appendix of Legislation Referred To

South Korea (pp. 667–735)

Reporter: Chiyong Rim

Preliminary Outline
Overall Insolvency Regime
Out-of-Court Workouts
Pre-Insolvency Proceedings
Formal Insolvancy Proceedings
Support Structures (Courts & States Agencies)
Stakeholder
Conversion of Proceedings
Rescue Financing
Stay and Moratorium
Ordinary And Special Contracts
Ranking, Priority and Resolution of Creditor Claims
Employment, Stakeholding and Pension
Avoidance and Clawback Rules and Safe Harbour Provisions
Rehabilitation Plans and Sales as a Going Concern
Sales and Mergers and Acquisitions
Group Insolvencies
Small Business Debtors
International and Cross-Border Insolvency
Statistics
Appendix of Legislation Referred To

Thailand (pp. 736–763)

Reporter: Kanok Jullamon

Preliminary Outline
Rescues: Out-of-Court and In-Court
Group Insolvencies
Insolvency of Micro, Small and Medium-Sized Enterprises
International and Cross-Border Insolvency Law
Statistics
Appendix of Legislation Referred To

Vietnam (pp. 764–804)

Reporter: Vu Thanh Van

Introduction
Rescues: Out-of-Court and In-Court
Group Insolvencies
International and Cross-Border Insolvency Law
Appendix of Legislation Referred To

Corporate Restructuring & Insolvency in Asia 2020

ABLI partnered with International Insolvency Institute and now launches a compendium on the corporate restructuring and insolvency regimes in 16 jurisdictions across Asia Pacific.

16 Asian Jurisdictions in 1 PDF