Cayman Grand Court reinforces effective cooperation in cross-border disputes
开曼法院判决增进跨境争议解决的合作
In the current economic climate, there is a pressing need for cross-jurisdictional co-operation when it comes to the Courts’ involvement in restructuring and insolvency proceedings. An increasing number of Hong Kong SAR companies are finding themselves in need of urgent assistance with restructuring and insolvency processes; this requires international co-operation where, as is often the case, such companies are incorporated in offshore jurisdictions.
在目前的经济情况下，重组及清算诉讼迫切需要跨各司法管辖区加强合作。越来越多在香港经营的公司在重组及清算的过程中急需协助，通常这些公司都在离岸辖区成立，因此需要国际间相互合作。
Here, Carey Olsen's James Noble, Jeremy Lightfoot, Dhanshuklal Vekaria and Yang Yang look at a recent decision from the Grand Court of the Cayman Islands, where the Grand Court provided a timely reminder that it was ready and willing to co-operate with the Courts of Hong Kong to ensure that the determination of a winding up petition was conducted so as to minimise the risk of conflicting judgments and to ensure that the insolvency process was conducted as efficiently as possible.
On 16 March 2020, the Grand Court delivered a judgment in Re Altair Asia Investments, FSD 200 of 2019 (RPJ), in which the Grand Court adjourned a creditor’s winding up petition in the Cayman Islands pending the decision to be made in the ongoing Hong Kong proceedings.
The petitioner in this case, Safe Castle Limited (Safe Castle), was a BVI company. Safe Castle applied to wind up the Cayman company, Altair Asia Investments Limited (Altair) as a creditor of Altair. The dispute was concerned with whether Safe Castle was entitled to apply to wind up Altair as a redemption creditor. In order to determine this question, the Grand Court first had to decide whether Safe Castle was entitled to redeem its shares in Altair upon an event which would trigger the redemption obligations – in this case when the closing share price of another company fell below a defined 'floor' for a defined short period of time.
Although the redemption obligations were governed by Cayman Islands law, the redemption obligations were subject to Hong Kong law governed guarantees given by an individual and a Hong Kong company. Safe Castle had already commenced proceedings in Hong Kong against the guarantors, including a winding up petition against the Hong Kong company and pursuing a bankruptcy petition against the individual guarantor. A decision from the Hong Kong Court was anticipated at the time of the presentation of the winding up petition in the Cayman Islands against Altair.
However, Altair was not a party to the Hong Kong proceedings. It was argued that the real risk of conflicting decisions being issued by the Grand Court and the Hong Kong Court necessitated an adjournment of the Cayman proceedings pending the decision of the Hong Kong Court.
Safe Castle on the other hand argued that there was no substantial dispute as to the obligations to make the redemption payments and submitted that the application to adjourn the Cayman proceedings was nothing but a delaying tactic.
The Grand Court accepted on evidence that the matter was more complicated than seemed at first blush and much of the dispute it was asked to decide would likely be covered by the anticipated decision from Mr Justice Harris of the Hong Kong Court – i.e. the underlying issue as to whether Altair was liable to Safe Castle for the redemption payments. The reasoning for this was that it was necessary in determining the Hong Kong proceedings to first establish whether the Altair was liable to Safe Castle before Safe Castle could proceed to enforce its security.
The Grand Court stated that the court's discretion as to whether to make a winding up order should not be exercised if there is a question as to whether the petitioner is in fact a creditor and the question is genuinely arguable. The Court cited Lord Hoffmann's speech in the Privy Council in Parmalat Capital Finance Ltd v Food Holdings Ltd [2008] UKPC 23 on appeal from the Cayman Islands Court of Appeal:
"If a petitioner's debt is bona fide disputed on substantial grounds, the normal practice is for the court to dismiss the petition and leave the creditor, first, to establish his claim in an action. The main reason for this practice is the danger of abuse of the winding up procedure. A party to a dispute should not be allowed to use the threat of a winding up petition as a means of forcing the company to pay a bona fide disputed debt. This is a rule of practice rather than law and there is no doubt that the court retains a discretion to make a winding up order, even though there is a dispute: see, for example, Brinds Ltd. V Offshore Oil N.L. (no 2)."
Accepting that the Court should be prepared to assess whether the defence is genuine and of substance in this case, the Grand Court decided that it should not pre-empt the judgment of the Hong Kong Court.
The Grand Court cited a long line of authority on the principles of comity supporting the Court exercising its inherent jurisdiction to stay its own proceedings on case management grounds without interfering with the right of the claimant's first choice of jurisdiction to litigate the case against the defendant. The Grand Court cited with approval the oft cited statement of Moore Bick J in Reichold [1999] CLC 486:
" ... choosing whom to sue is one thing; choosing in what order to pursue proceedings against different defendants may be another, especially when two related sets of proceedings are being, or could be, pursued concurrently. In such a case the court itself has a greater interest, not only because the existence of concurrent proceedings may give rise to undesirable consequences in the form of inconsistent decisions, but also because the outcome of one set of proceedings may have an important effect on the conduct of the other."
Reichold was followed by the English Court more recently in Bundeszentralamt [2019] EWHC 705 Ch in which Hildyard J granted a stay of an appeal in insolvency proceedings to avoid the risk of inconsistent judgments arising from concurrent proceedings in Germany where the proof of debt was also at issue in determining relevant tax liabilities. Hildyard J noted that although "in the ordinary course stays would only be granted in 'rare and compelling circumstances'", the risk of conflicting judgments "is always capable of amounting to a very strong reason for granting a stay".
In this case, Safe Castle proceeded first against the guarantors in the Hong Kong Court then the debtor itself in the Cayman Court. The Grand Court decided that it was in the interests of justice to avoid conflicting decisions given by different courts and exercised its discretion to adjourn.
The Grand Court stated that even if the order made by the Hong Kong Court would not bind Altair or the Grand Court, it would be undesirable for the parties to be faced with conflicting judgments form different courts over essentially the same underlying dispute, based on the same arguments, with similar evidence and similar law.
The Grand Court emphasised the importance of comity and co-operation between the courts involved in cross-border insolvency matters before concluding that it would not be appropriate for the Grand Court to proceed to judgment knowing that the Hong Kong Court was to make a decision on similar facts or issues. This was notwithstanding that there were notable differences in the Hong Kong and Cayman Islands proceedings, namely different relief being sought against different parties. The Grand Court further noted the risk of inconsistent decisions on the main issues, which were based on the same underlying legal and factual questions, would result in unnecessarily expending judicial resources in both courts and cause Altair to suffer from parallel proceedings even though it was not a party to the Hong Kong proceedings.
Summary
The facts in this case are not unique. Companies incorporated offshore are often parties to complex commercial transactions, which involve commercial documents often governed by the laws of onshore jurisdictions. Offshore jurisdictions provide essential tools to the parties to enforce their rights in circumstances where valuable assets are held by the entities incorporated in the offshore jurisdictions.
This decision of the Grand Court once again provides reassurance to parties that the Courts of offshore jurisdictions will work together co-operatively with the Courts of jurisdictions like Hong Kong to provide flexible and efficient processes for multi-jurisdictional business to use the insolvency and restructuring processes to achieve the best possible outcome for all stakeholders involved.
An original version of this article was first published by IFC Review, April 2020.
© Carey Olsen 2020.
凯瑞奥信合伙人James Noble及Jeremy Lightfoot、高级律师Dhanshuklal Vekaria 和 Yang Yang讨论开曼法院最近的一个判决，其中开曼法院适时提示，其愿与香港法院合作，确保清算程序的的审理过程中能减低判决相互矛盾的风险，并确定清算程序能得以有效执行。
开曼法院在2020年3月16日于Re Altair Asia Investments一案（案件编号：FSD 200 of 2019 (RPJ)）中判决，延期审理一位债权人在开曼群岛的清算申请，以待香港诉讼中的判决。
此案的申请人Safe Castle Limited（"Safe Castle"）是一间BVI公司。Safe Castle以债权人的身份，申请清算一间开曼群岛公司Altair Asia Investments Limited （"Altair"）。此案的争议在于Safe Castle是否有权以债权人的身份申请清算Altair。为了解决该问题，开曼法院首先要决定在引发其赎回义务前，Safe Castle是否有权去赎回其拥有Altair的股份——本案中即另一间公司的收盘价在规定的短时间内低于特定的价位是否触发该义务。
尽管赎回义务是受开曼群岛的法律规范，但为赎回义务提供的个人及香港公司担保受香港法律约束。Safe Castle已经在香港与担保人展开诉讼，包括对其香港公司提出清盘申请，并对个别担保人出破产申请。同时在开曼群岛提出清盘申请时，香港法院即将有判决结果。
但是，Altair并不是香港诉讼中的当事方。由开曼法院和香港法院颁布的不同判决确实存在冲突的风险，因此有必要在香港法院作出判决之前延后开曼群岛的诉讼。
另一方面，Safe Castle称赎回义务没有实质性的争议，提出申请延后开曼的诉讼不过是一种拖延战术。
开曼法院认可此事比表面上看起来要复杂得多，而且大部分的争议都可能由香港法院法官Harris法官即将做出的判决所涵盖，即根本问题是 Altair是否需要向Safe Castle偿还赎回款项。其理由是在香港法律程序中，需要先确定Altair是否对Safe Castle负有法律责任，Safe Castle才能继续执行担保权利。
开曼法院指出，若有关于申请人是否是债权人的问题存在争议，法院不应立刻行使颁布清盘令的酌处权。法院引用了Lord Hoffmann在枢密院对于从开曼群岛上诉法院上诉的Parmalat Capital Finance Ltd诉Food Holdings Ltd [2008] UKPC 23一案的判决中的理由：
“若对申请人的债权有充足实际的理由提出争议，通常的做法是法院驳回申请，并让债权人首先提出诉讼。这种做法的存在主要是为防范滥用清算程序，不应允许争议当事方用清算申请作为威胁手段强迫公司支付确有争议的债权。这是一种惯例而非法律，且毫无疑问即使有争议，法院仍保留颁布清盘令的酌情权，例如：参Brinds Ltd. V Offshore Oil NL（no 2）一案。”
开曼法院认同法庭也会评估此案中对债权的争议是否真实和有实质性，因此决定其判决不应取代香港法院的判决。
开曼法院引用礼让原则上一连串的法律依据，以支持法院行使其固有管辖权，以案件管理为由而暂缓其诉讼程序，而不会影响本案债权人在选择对被告人提起诉讼的管辖做出对其有利选择的权利。开曼法院同意Moore Bick 法官在Reichold [1999] CLC 486案中引用的理由：
“……选择起诉谁是一方面；选择以何种顺序对不同被告提起诉讼是另一方面，尤其是正在或可能同时进行两个相关的诉讼时。在这种情况下，法院本身更需要考虑，不仅是因为同时进行法律程序会因不一致的判决而引起不理想的结果，还会因为一个法律程序中的判决可能对另一个判决产生重要影响。”
英国法院最近在Bundeszentralamt [2019] EWHC 705 Ch案适用了Reichold一案的判决。在该诉讼中，Hildyard法官暂缓了对清算程序的上诉，以避免与德国同时进行的诉讼产生不一致判决的风险。在德国的税务诉讼中是否能确定相关税收也涉及债务是否存在争议。Hildyard法官指出，尽管“在通常情况下，只有在'罕见和令人信服的情况下'才准予暂停”，但判决有存在冲突的风险“是一个批准暂定的充分理由”。
在本案中，Safe Castle首先在香港法院对担保人提起诉讼，然后在开曼法院对债务人本身提起诉讼。开曼法院认为，避免不同法院做出的相互矛盾的决定符合司法利益，并行使其酌情权审理申请延后。
开曼法院指出，即使香港法院的判决不对Altair或开曼法院具有约束力，但当事各方需要就相同的争议而面对由不同法院（根据相同的论据、相似的证据和法律）而判出相互冲突的裁决，这也是不可取的。
大法院强调涉及跨境清算案件的各地法院的友好合作十分重要，并总结其不适合在香港法院将就相关事实或问题作出裁决时继续审理此案。但香港和开曼群岛的诉讼程序仍有显著差异，即各方寻求不同的救济不同。开曼法院还指出，基于相同的法律和事实根据，在主要问题上作出不一致判决的风险有可能导致两个法院不必要地消耗司法资源，并使Altair遭受两边诉讼，即使Altair并非香港诉讼当事方。
总结
此案中事实相当普遍。离案公司通常被运用在复杂的商业交易中，涉及这些公司的商业文件通常受在案司法管辖区的法律管辖。离岸司法管辖区为当事人在其注册的企业在持有有价资产的情况下行使其权利提供重要的工具。
开曼法院的这一判决再次显示了其能确保离岸法院会与香港等司法辖区的法院合作，为跨辖区的企业业务提供灵活有效的清算和重组等司法程序，为当事人取得最理想的结果。
