Does the common law power to grant cross‐border insolvency assistance apply to an insolvency winding‐up that is voluntary? The reaction to Singularis from Singapore and Hong Kong

• Author: Charles Zhen Qu,Andrew Godwin
• DOI: http://doi.org/10.1002/iir.1348
• Date: 01 December 2019
• Published date: 01 December 2019

RESEARCH ARTICLE

Does the common law power to grant cross-border

insolvency assistance apply to an insolvency

winding-up that is voluntary? The reaction to

Singularis from Singapore and Hong Kong

Charles Zhen Qu

1

| Andrew Godwin

2

1

School of Law, City University of Hong

Kong, Kowloon, Hong Kong

2

Melbourne Law School, University of

Melbourne, Parkville, Vic, Australia

Correspondence

Charles Zhen Qu, School of Law, City

University of Hong Kong, Kowloon, Hong

Kong.

Email: czqu00@cityu.edu.hk

Abstract

In many common law jurisdictions, the common law

power of courts to grant assistance in respect of foreign

insolvency proceedings exists independently of statute.

The nature of the power, however, continues to generate

debate. Obiter dicta of the Privy Council suggests that no

assistance is available where the foreign proceeding is a

voluntary winding-up. This article evaluates the position

by reference to Singapore and Hong Kong decisions and

concludes that a refusal to grant assistance in circum-

stances involving an insolvent voluntary winding-up is

inconsistent with the principle of modified universalism

and that a broader recognition test should be adopted.

KEYWORDS

corporate insolvency, cross-border insolvency, recognition and

assistance

1|INTRODUCTION

As Lord Sumption observed in Singularis Holdings Ltd v PricewaterhouseCoopers

1

:

in a world of global business it is in the interest of every country that companies with

transnational assets and operations should be capable of being wound up in an orderly

1

[2015] AC 1675 (PC), 1696.

Received: 7 August 2019 Revised: 17 September 2019 Accepted: 24 October 2019

DOI: 10.1002/iir.1348

© 2019 INSOL International and John Wiley& Sons, Ltd

Int Insolv Rev. 2019;28:305–319. wileyonlinelibrary.com/journal/iir 305