Contributed By Fangda Partners
According to the statistics released by the Supreme Court in March 2019, the number of bankruptcy cases accepted by courts across the People's Republic of China (PRC) in 2018 was 18,823, increasing by a year-on-year rate of 97.3%. Meanwhile, a total number of 11,669 cases were closed in 2018, representing an increase of 86.5% compared to the same period last year. As for reginal statistics, 2018 saw a volume boom in the city of Shanghai, the number of bankruptcy cases accepted by the courts has tripled. In Shenzhen, the number of bankruptcy cases tried by court in 2018 totalled 1632, accounting for nearly 10% of the national figure.
As the economy has shifted from a state of high-speed growth into a period of moderate growth, the financial restructuring and insolvency regime has been regarded as a powerful tool in improving and accelerating market-exit efficiency, which can play a crucial role in boosting supply-side structural reforms. We have witnessed a great wave of industrial integration in the past few years in various sectors such as iron and steel manufacturing, shipbuilding, solar photovoltaic and the coal chemicals industry. The number of bankruptcy cases has shown a sharp and continuous increase since 2017.
An outbreak of corporate bond defaults has also posed enormous challenges to the health of the bond market and the stability of the economic environment and, to some extent, pushed forward the development of market-orientated financial restructurings and insolvencies. In 2018, the total amount of bond default reached CNY99.347 billion, which was three times higher than the previous peak amount and the number is still soaring in 2019. More market entities may seek to utilise financial restructurings and insolvencies to address the difficulties and risks affecting them.
According to the 2019 China Financial Non-performing Assets Market Survey Report, the amount of non-performing loans in commercial banks has totalled CNY2 trillion and the amount of special mention loans had reached CNY3.4 trillion by the end of 2018. The aggregate amount of these two types of loan accounted for 5.05% of national banks’ total credit. The report also shows that in 2019 and 2020, the non-performing loan ratio of Chinese commercial banks will continue to rise. Such a severe situation has pushed the banks to take a much more active role in the restructuring and insolvency market. We have witnessed several large cases where banks play a leading role by way of establishing a financial creditors’ committee and engaging in pre-proceeding works as a powerful co-ordinator.
The Supreme Court issued a third judicial interpretation relating to the implantation of the PRC Enterprise Bankruptcy Law (the Bankruptcy Law), which came into effect on 28 March 2019. The new judicial interpretation gives clear prescriptions on several issues where there was a lack of statutory guidance before.
Additionally, a strong emphasis has been placed on the importance of the bankruptcy regime at the administrative and judicial level. The National Development and Reform Commission (NDRC), the Supreme Court and 13 other relevant departments issued, in July 2019, the “Plan to Accelerate the Improvement of the Reform of the Exit Mechanism of Market Entities", recognising the Bankruptcy Law to be a pivotal point in the development of the market economy. The National Court Conference on Bankruptcy Trials created the requirement that restructuring and bankruptcy tools be fully used by the judicial system.
Restructurings and insolvencies have been evolving in a more market-driven direction. The number of companies encountering financial distress is climbing and therefore the problem-solving mechanisms have had to be improved to keep up with the pace, at both the out-of-court as well as the judicial level. Recent judicial improvement may greatly promote market confidence in terms of investment in, and financing of, insolvencies. For instance, the new judicial interpretation stipulates that the administrator or the debtor may borrow funds to continue the debtor’s operations during bankruptcy proceedings. The new funds will be treated as a claim incurred for the common benefit of all creditors who enjoy preferential repayment in the proceeding. The new rule expands the implications of this form of financing in both judicial restructuring and liquidation cases.
Great importance has been attached to the developments in the restructuring and bankruptcy regime by the Government and the Supreme Court in the past few years. Market exit through restructuring and bankruptcy solutions has been more widely accepted and promoted. Tools such as out-of-court workouts and pre-packaged restructurings have been used by market players on various occasions.
Courts have taken great strides in pushing forward regulatory development by introducing advanced system such as the pre-package restructuring system into the market. The “Working Guidelines for the Shenzhen Intermediate People's Court to Trial Enterprise Reorganisation Cases” (for trial implementation) specifically stipulate the rules of a pre-package system, which inject great vitality into the restructuring and bankruptcy market by standardising practices that may substantially increase restructuring efficiency.
The main legal sources governing reorganisations, liquidations and insolvencies in the PRC include:
There are three types of proceedings available under the Bankruptcy Law including reorganisation, reconciliation or bankruptcy liquidation. Reorganisation and liquidation can be voluntary or involuntary, depending on who makes the petition to initiate proceedings.
In the course of voluntary liquidation, if the liquidation committee finds the company insolvent during the process of liquidation, it is obliged to initiate a bankruptcy liquidation proceeding to clear the debts of the company. However, the law does not specify a time limit for initiation of bankruptcy liquidation.
The only available procedural option under the circumstance discussed in 2.3 Obligation to Commence Formal Insolvency Proceedings is bankruptcy liquidation.
Creditors can petition for the commencement of involuntary proceedings by submitting an application to the court against the debtor for restructuring or liquidation when the debtor is unable to repay its debts as they fall due.
If a debtor fails to pay off its debts due, and its total assets are not enough to pay off all its debts, or it is obviously insolvent, it can be subject to reorganisation or liquidation proceedings under the bankruptcy law.
If the debtor is highly likely to be insolvent, it can also be subject to the reorganisation proceedings under the law.
In voluntary proceedings, a debtor has to adequately prove its insolvency by submitting to the court an audit, or other equivalent documents, showing that the debtor’s assets are not enough, or unlikely, to cover all its debts.
In involuntary proceedings, a creditor must prove the fact that the debtor cannot pay debts owed to the creditor when they fall due.
Where a commercial bank, securities company, insurance company or any other financial institution falls under any of the bankruptcy tests stipulated in Article 2 of the Bankruptcy Law, the financial supervision and administration authorities of the State Council may apply to the court for a restructuring or a bankruptcy liquidation of the financial institution.
However, there are no specific implementation measures governing the restructuring and bankruptcy of financial institutions, or other types of public institution, apart from the Securities Companies Risk Disposal Regulations which regulate the insolvencies of securities companies.
Generally speaking, creditors, debtors and other participants in the market are more and more willing to try out-of-court restructurings or workouts because these can be more flexible and efficient, though the current practices still lack unified guiding rules such as the INSOL Principles.
The National Development and Reform Commission and the Supreme Court, together with other relevant departments, have initiated a study on the establishment of an out-of-court restructuring regime in the PRC. Though it may be some time before any material progress is made, the prospect is positive.
The China Banking Regulatory Commission (CBRC), issued, in 2016 and 2017, two notices requiring banks to play an active role in distressed companies through establishing a financial creditors’ committee. According to the notices, three creditor banks have the power to initiate a proposal to establish an ad hoc committee for companies with large scale financial liabilities. The notices also require the committee, after its establishment, to set up an inter-bank agreement to stipulate working rules, restrictions and powers under the self-steering process. Nevertheless, the binding power of such notices is limited and not as powerful as laws or regulations.
It is believed by bankruptcy professionals that out-of-court restructuring will help improve restructuring efficiency and greatly reduce costs. However, the PRC market is not mature enough for this perception to be widespread yet. Bankruptcy practitioners do, however, have an incentive to promote out-of-court workouts as the market is growing very fast and insufficient court capacity means the number of cases is still limited.
Lender support for borrower companies varies from case to case, and depends on factors such as the internal policy of the bank in question on dealing with non-performing loans, the reputation and integrity of the debtor, the support of the local government and bank regulator, etc.
Since there are no applicable rules available to informal workouts at present and out-of-court agreements only have the effect of a contract, market participants have begun to explore a practice similar to pre pack administration, as in the US, where the major stakeholders will agree on a restructuring plan out of court and then file for bankruptcy reorganisation and have the agreed plan confirmed by the court relatively swiftly.
There is no requirement for mandatory consensual restructuring negotiation before the commencement of a formal statutory process.
The concept of standstill has been used in most out-of-court efforts in the market, but it may not actually be able to bind every major creditor due to the lack of unified-practice rules or corresponding consequences for not abiding by them.
There might be obligations for the debtor company during a consensual restructuring/workout to disclose financial information to the creditors’ committee to assist with the formulation of a viable plan. The debtor may also be required to preserve its assets and ensure their safety and integrity during the restructuring.
There are no specific rules specifying the roles and functions of the ad-hoc committee though it is widely believed that the purpose of such a committee is to adopt timely and effective actions to protect the creditors’ interests and contain, to the extent possible, social and financial risks.
The expenses of creditors’ committees are normally borne by the creditors themselves while in some cases the debtor bears the expenses for hiring a financial advisor to assist in due diligence and formulation of the restructuring plan.
For most cases on the market, an ad hoc creditors’ committee is commonly formed by banks or financial institutions that have large claims against the debtor. In a few cases, there may be governmental authorities or other types of creditor representatives involved.
Information such as financial statistics, books or detailed assets lists as well as important contracts or materials will be required by the creditors from the debtor.
From a practical point of view, it is difficult to make material modifications to the hierarchy and nature of existing claims. Normally, debt extension is widely accepted, and a cut down of debt may be achieved sometimes, but it is rare for the priorities of claims to be changed on a contractual basis.
If new money is being injected by any creditor or new investor during out-of-court restructurings, super-priority security can only be granted if the existing creditors agree.
There are no specific rules or laws related to conduct during out-of-court restructuring. The most relevant legal principle will be that of good faith, which is required by Chinese civil law in all civil matters.
It is rare for credit agreements to include terms permitting a majority or super-majority of lenders to bind dissenting lenders to changed credit agreement terms.
Informal consensual processes are perceived as extremely difficult because of the holdout issue. In some cases, where the dissident creditors only hold a limited amount of the claim, the majority creditors who have reached a restructuring plan will decide to pay the dissident creditors’ claims in full.
Cramdown mechanisms only exist in bankruptcy reorganisation proceedings.
All kinds of security permitted by PRC Property Law are available to secured creditors such as a mortgage over the debtor’s real estate, a pledge over equity interests owned by the debtor, a lien on movable assets as well as pledges over bank accounts or other types of rights or properties owned by the debtor.
Outside bankruptcy, a secured creditor may bring a summary proceeding or a full-blown civil action to exercise its security interests. PRC law is unsettled as to the effect of intercreditor covenants.
Secured creditors cannot block or disrupt a bankruptcy proceeding. In bankruptcy, secured creditors enjoy first priority in receiving proceeds realised from the secured property.
In bankruptcy reorganisation, enforcement of the security interest will be stayed, unless the secured creditor’s interest is at risk and no adequate protection is provided by the bankruptcy administrator.
The statutory limitation for submission of a draft plan in a formal reorganisation proceeding is six months plus a three-month extension upon court approval, therefore, the suspension of security enforcement can be prolonged by up to nine months. In practice, this suspension period can be dragged out for longer due to various procedural or practical issues.
In a liquidation proceeding, the realisation of security can be much faster. However, there’s no statutory time limitation on the enforcement of a security right in a liquidation.
In court-supervised reorganisation and liquidation proceedings, the realisation of the collateral will be conducted through public auction unless the creditors’ meeting passes a resolution otherwise. Before the collateral is put to auction, a valuation process needs to be carried out to identify the liquidation value or market value and so determine a starting price for the auction.
There’re no special procedures or impediments that apply to foreign secured creditors. Foreign secured creditors will receive the same treatment as domestic secured creditors.
The secured creditor has no special procedural protection other than the rights discussed in 4.2 Rights and Remedies.
There are no distinctions made between members of the class of secured creditors, all will have the same rights and priorities. The unsecured creditors may sometimes be divided into a small-claim group and an ordinary unsecured class depending on necessity and in individual cases.
The secured creditor enjoys the priority of payment in respect of the collateral’s value while the unsecured group is repaid on a pro-rata basis. The small-claim group creditors may obtain comparatively higher repayment than the ordinary unsecured group in many cases.
Unsecured trade creditors will be treated as ordinary unsecured creditors and receive the same repayment as other creditors in the same group. There are a few cases where unsecured trade creditors enjoy a higher repayment rate than unsecured financial institution creditors for practical reasons such as maintaining social stability or sustaining the debtor’s operation, provided that other unsecured creditors (mainly the financial institution creditors) agree to the arrangement.
Unsecured creditors do not have the power to disrupt the insolvency/restructuring process or achieve any stay or a deferral of a liquidation.
The unsecured creditors have the right to raise an objection to the administrator’s review of the claims and to initiate litigation if they are unsatisfied with the administrator's response to the objection. Besides, an unsecured creditor enjoys rights prescribed by the Bankruptcy Law, as does every creditor, such as the right to obtain information, to participate in a creditors’ meeting, to vote on various motions and plans made by the administrator, etc.
Outside bankruptcy, pre-judgment attachments are allowed and widely used. Once the debtor enters bankruptcy, all antecedent attachments will be lifted.
Outside the bankruptcy context, a typical timeline for enforcing an unsecured claim varies between 18 months and three years, depending on the specifics of the case. During a formal reorganisation or liquidation proceeding, unsecured creditors are prohibited from enforcing their claims by compulsory enforcement procedure, they have to wait for unified distribution by the administrator. There’s no specific time limitation regarding this distribution.
There are no special rules for bespoke rights and remedies for landlords in our jurisdiction
Foreign unsecured creditors enjoy the same protection as domestic creditors.
After payments of bankruptcy expenses and debts incurred for the common benefit from the debtor's assets, the claims shall be repaid in the following order:
Where the debtor’s assets are insufficient to pay the claims in this order, distribution shall be made on a pro rata basis.
There are two types of priority claims pursuant to PRC law. One comprises bankruptcy expenses including administration expenses, remuneration of the administrator and other procedural expenses; the other is debt incurred during the proceeding for the common benefit of the creditors, including new money borrowed for the purpose of continuous operation and liabilities incurred for assumption of contracts.
Secured creditors enjoy priority to the extent of the value of the collateral, except for claims related to (or arising from) administration of the collateral.
When half or more of the creditors, representing two thirds or more of the total amount of the creditors' claim, in the same voting group, vote in favour of the draft restructuring plan, the plan shall be deemed as passed by this group. When all voting groups vote in favour of the plan, the draft plan is deemed to be passed by the creditors’ meeting.
If one or more voting groups vote against the plan, the court will have, upon an application made by the administrator, discretion to decide whether to exercise its cramdown power, subject to certain criteria prescribed by law. For the criteria that should be met for the court to exercise this power, please refer to 6.4 Claims of Dissenting Creditors.
In principle, the hierarchy of claims is not subject to modification. However, the modification of claims can be achieved if the claimholder, whose claim is subject to modification, voluntarily agrees to the arrangement.
The requirements for commencing restructuring/reorganisation can be found in 2.5 Commencing Involuntary Proceedings.
The purpose of a restructuring proceeding is to fairly settle the debts of the company through an adjustment plan, so as to safeguard the legitimate interests of the creditors and rescue the debtor’s value as a going concern. Debt avoidance or liability evasion through the proceeding is strictly prohibited.
Formal reorganisation proceedings are court-driven and court-supervised processes.
A creditor, debtor or a debtor’s capital contributor, whose capital contribution makes up 10% or more of the debtor’s registered capital, can petition the court for reorganisation.
The court will decide to accept the petition for reorganisation and make a public announcement when the petition is in full accordance with the legal requirements.
The typical timelines and milestones that apply to formal reorganisation proceedings are as follows:
If the petition is made by a creditor, the court shall decide whether to accept the case within 22 days of the creditor submitting their petition; if the petition is made by a debtor, the court shall decide whether to accept the case within 15 days of the debtor submitting their petition. Under special circumstances, these two periods may be extended for another 15 days upon the approval of a higher-level court.
The court will, within 25 days as of the date it accepts the case, notify known creditors and publicly announce its decision.
The term for lodging the creditor’s claim will be determined by the date on which the court announces its acceptance of an application for reorganisation. Claims must be lodged within a period ranging from 30 days to three months from this date.
The first creditors’ meeting will be held by the court within 15 days of the expiry of the term for lodging a claim.
The debtor or administrator should, within six months of the court accepting the reorganisation petition, submit a draft restructuring plan to the court and the creditors’ meeting. The six-month period can be extended for another three months if the court approves.
An expedited process for reorganisation in not available in our jurisdiction.
The administrator will conduct material examinations of the claims upon reviewing the documents and evidence submitted by the creditors. The claim-review results will be filed for review at the creditors’ meeting, the undisputed claims will be confirmed by a court ruling which serves as a final recognition. Interest on the claims (if any) shall be calculated based on the date when the proceeding commences.
Contingent claims can also be registered with the administrator during the proceeding. The administrator will examine the claims and preserve the portions for such claims before the final results are determined.
A restructuring plan, if approved by the court, will have binding power over the debtor and all creditors including the “unknown” creditors or contingent claimants.
A restructuring proceeding is not confidential, but the Bankruptcy Law itself does not require public disclosure of the key terms of the restructuring plan. Where the debtor is a public company, it will be subject to disclosure rules issued by the securities regulator.
The judgment made on a reorganisation proceeding cannot be appealed procedurally. However, if the debtor’s business and assets continue to deteriorate and reach a hopeless state; or the debtor conducts acts of fraud and maliciously reduces its assets; or similar behaviour that damages the interests of the creditors occurs; or the administrator is unable to perform its duty due to the behaviour of the debtor the court will, upon the application of the administrator or interested parties, terminate the proceeding, declare the debtor insolvent and convert the proceeding into a bankruptcy liquidation.
The creditors will be divided into several groups to cast votes on the restructuring plan, when the level of support satisfies the legal requirements, the plan will be deemed as approved by the group.
If the plan is passed by the creditors’ meeting, the court will issue a ruling to confirm the plan upon an application by the administrator. After that, the court will rule to terminate the proceeding and the execution period of the plan starts. During this period value will be distributed to the creditors according to the legal hierarchy and on a pari passu basis unless the plan stipulates otherwise.
After the court accepts an application for restructuring, an automatic stay will be granted to the debtor which prevents the creditors from taking further action to seek litigation or enforcement against the debtor. Interest calculation will cease and payment of debt to any individual creditor is prohibited.
The administrator has the power to decide whether to continue the debtor’s operation (upon court approval) before the first creditors’ meeting is convened. The creditors’ meeting also has the power to decide whether to continue or suspend the debtor’s business under such a proceeding.
The court will appoint an administrator to take charge of the debtor’s management. An administrator will be appointed from a roster published by courts in different provinces. Please refer to 9.3 Selection of Officers for details. In reorganisation proceedings, the debtor can also apply to the court to manage its own business, in which case the administrator will only take a supervisory role and not be involved in daily operational decision-making.
The administrator, or a debtor in the state of self-management, may borrow funds to continue the debtor’s operation if the creditors’ meeting allows it to do so, or with the court’s approval before the first creditors’ meeting is convened.
The creditors will be classified into four groups: the secured creditors’ group, the employees' group, the tax group as well as the unsecured creditors’ group.
A creditors’ committee shall consist of creditors selected by the creditors’ meeting plus one employee representative of the debtor or a representative from the labour union.
The creditors’ committee has the following powers and duties:
When the creditors' committee performs duties, it has the right to require the administrator and debtor give explanations or provide the relevant documents on matters relating to the scope of its functions and duties.
The expenses of the creditors’ committee are usually compensated as part of the bankruptcy expenses.
A creditor has the right to review the debtor’s financial status report, resolutions of the creditors’ meeting, resolutions of the creditors’ committee, the administrator’s supervision report, and the debtor’s financial and operational information necessary for the creditor to participate in the proceeding.
When there are one or more voting groups or votes against the draft restructuring plan, the court may exercise the power to cramdown the plan if it meets the following requirements:
When the creditor assigns or trades its claims, a notification must be sent to the debtor and the administrator in writing. Otherwise the assignment or trading will have no effect against the bankruptcy estate. Once the duty of notification is fulfilled, the legal position of the previous creditor will be assumed by the new creditor.
Substantive consolidation of group companies in bankruptcy proceedings is possible in the PRC though there are no statutory provisions on implementation. In practice, where the assets and liabilities of entities within a corporate group are commingled to such an extent that separating them would be infeasible or prohibitively costly, the court may – upon petition by the administrator – include all affiliates within the group into one combined procedure.
The administrator will manage and dispose of the debtor’s assets after taking the assets into custody under the proceeding. The use or sale of assets should be subject to the asset management plan and the assets disposition plan made by the administrator and then approved by the creditors’ meeting.
Normally, sale of assets during the proceeding shall be conducted through public auction unless the creditors’ meeting agrees otherwise.
Contractual transactions regarding the sale of assets may only be enforceable with the approval of the creditors’ meeting.
The administrator is responsible for executing the asset disposition plan if that plan is approved by the creditors’ meeting. A purchaser will acquire good title in a sale executed pursuant to such a restructuring proceeding, free and clear of claims. Neither bidding by creditors nor their acting as stalking horses in a sale process is allowed under the proceeding
If a contract of transaction has been signed prior to the proceeding and it has not been fully performed by both parties, the administrator will have the power to decide whether to rescind or continue to perform the contract on the basis of maximising the debtor’s asset value.
No secured creditor liens or any security arrangements will be released pursuant to a restructuring.
The administrator or the debtor-in-possession may borrow funds for the debtor to continue its operation during the proceeding. It is permitted for the debtor's assets to be used as security for such a loan. If the assets encumbered by pre-existing secured creditors have a value large enough to guarantee the new loan and with the consent of the investor, the law does not prohibit the practice as long as the newly established encumbrance will not cause detriment to the pre-existing secured creditor.
A creditor’s claim can be determined through statutory processes under the Bankruptcy Law which authorises the administrator to examine and determine the value of a claim and submit to the court for ruling after review by the creditors’ meeting.
A reorganisation plan will be submitted by the administrator or the debtor for the approval of the creditors’ meeting. If all groups of creditors vote in favour of the plan, the court will normally approve the plan upon application. While there are one or more dissenting groups voting against the plan, the administrator may apply to the court to exercise the power of cramdown over the dissenting groups, the standard for which is discussed in 6.4 Claims of Dissenting Creditors.
The administrator has the power to decide whether to rescind or continue to perform a contract that has been established before the proceeding, yet has not been fully performed by both parties. The administrator shall send written notice to the contractual party to state its willingness to continue or desire to terminate the contract within two months of the commencement of the proceeding. If the administrator fails to do so within the two-month period, the contract is deemed to be terminated automatically.
If the contract is terminated, the counterparty can make a claim against the debtor on the basis of the right to be compensated for the damage incurred.
Non-debtor-parties, such as guarantors, will not be released from liability due to the statutory insolvency procedure.
When a creditor is indebted to the debtor before the commencement of a proceeding, the creditor can make an assertion to the administrator for offset. However, offset is not allowed if a creditor obtains the claim from other creditors of the debtor after the commencement of a proceeding, or a creditor assumes liability to the debtor or obtains the claim against the debtor in the awareness of the debtor’s insolvency (except where the assumption of liability or obtaining of claim arises from an event that has occurred at least one year prior to the commencement of the bankruptcy proceeding).
A restructuring plan approved by the court has binding power over the debtor and all creditors. The court will not impose unobserved terms on the parties. If the plan cannot be implemented, the court shall, upon petition by the administrator or any interested party, terminate the implementation of the plan and declare the debtor bankrupt. The party who fails to perform the terms of the agreement may bear liability for breach of contract or be otherwise held responsible according to the specifics of the non-performance.
When the debtor is in a state of bankruptcy, the existing owners’ equity has no value. It is unreasonable to allow the owner to retain any value in or from the debtor unless the new investor agrees to this on a negation basis. The law does not expressly prohibit existing equity owners from retaining ownership in the debtor upon conclusion of the restructuring. In practice, it is up to the creditors and investors (if any) to decide whether to approve or accept the draft restructuring plan that lets the existing equity owners keep some ownership.
There’re two types of statutory liquidation proceedings available in China: bankruptcy liquidation and involuntary company liquidation.
A bankruptcy liquidation is a court-supervised proceeding by which a debtor company can settle its debts with fairness to all its creditors through unified procedures before dissolution. Under this proceeding, the debtor’s assets will be disposed of to maximise returns to the creditors under judicial supervision and creditors in the same class will be paid on a pari passu basis. The proceeding, in practice, can be long and costly.
An Involuntary company liquidation proceeding is governed by the PRC's Company Law and is also subject to court supervision. In this proceeding, the company is solvent and can pay off all debts with its assets. The judicial role in the proceeding is to ensure the distribution is fair and just, without discrimination to any of the creditors and that no creditor will be left out before the shareholders of the company get back what’s left at dissolution. An involuntary company liquidation can also be time-consuming and costly.
There is no court-supervised voluntary liquidation for a solvent company in our jurisdiction.
Under bankruptcy liquidation, the people’s court will appoint a bankruptcy administrator to carry out the proceedings.
How Proceedings are Commenced
Bankruptcy liquidation can be commenced under the following circumstances:
Involuntary company liquidation can be commenced upon the application of a creditor or a shareholder of the company, where an event of dissolution has occurred, and no liquidation committee is established within the statutory time period to conduct voluntary liquidation.
The statutory requirements for commencing a bankruptcy liquidation are discussed in the third paragraph of 6.1 Statutory Process for a Final Restructuring/Reorganisation. Those for an involuntary company liquidation can be found in the second paragraph of this section.
How a creditor's claims in the case of a bankruptcy liquidation are calculated and recognised, at what point and by whom is discussed in the eighth paragraph of 6.1 Statutory Process for a Final Restructuring/Reorganisation.
In involuntary company liquidations, creditors also need to declare their claims to the liquidation committee. The requirements regarding the submission of evidence and the examination procedures adopted by the liquidation committee will operate under similar standards to those adopted in bankruptcy liquidations. However, interest on claims (if any) will continue to accumulate until the date on which such claims are fully compensated.
Contingent claims will not be preserved by the liquidation committee in the case of an involuntary company liquidation. If contingent claims become liquidated claims after liquidation is completed, the creditor is entitled to seek compensation from the shareholders of the dissolved company to the extent of the remaining value received by the shareholders from liquidation.
A bankruptcy liquidation is deemed to be commenced when the court issues an order accepting the bankruptcy liquidation petition.
An involuntary company liquidation is deemed to be commenced when the court issues an order accepting the petition for a court-designated liquidation committee.
The seventh paragraph of 6.1 Statutory Process for a Final Restructuring/Reorganisation discusses the timelines relevant to bankruptcy liquidations.
The difference in timelines between a bankruptcy reorganisation and a bankruptcy liquidation is that the law does not provide for a time limitation for the latter, thus the time consumed by bankruptcy liquidation proceedings varies greatly on a case-by-case basis.
The High Court of Shanghai issued, in 2018, The Guidelines on Expedition of Bankruptcy Trials by Simplifying the Procedures (the Guidelines), which mandate that cases satisfying certain conditions will be tried under summary procedures in which statutory periods are substantially shortened. The Guidelines requires that a summary procedure shall be closed within six months of its commencement date.
The timelines that apply to involuntary company liquidation ensure that the liquidation committee notifies known creditors within ten days and makes an announcement in public newspapers within 60 days of its formation.
Under involuntary liquidation proceedings, the liquidation committee is required to complete the procedure within six months of its formation, yet can apply to the court for an extension if necessary.
6.5 Trading of Claims Against a Company deals with the trading of claims.
Stays and Moratoriums
The first paragraph of 6.2 Position of the Company contains information on moratoriums or "stays" of legal proceedings or enforcement actions in the case of a bankruptcy liquidation.
No automatic stay or moratorium will be granted to the company in the context of an involuntary company liquidation.
Continuation of Company Business
Please refer to the second and third paragraphs of 6.2 Position of the Company as well as 9.2 Statutory Roles, Rights and Responsibilities and 9.3 Selection of Officers for details of how a business will continue to be run in the event of a bankruptcy liquidation.
In involuntary company liquidations, the court will designate a liquidation committee to perform the duty of liquidating the company under the court’s supervision. The liquidation committee is responsible for clearing the company’s assets, making a balance sheet and checklist of assets, notifying and making public announcement to creditors, dealing with unfinished company businesses, clearing the taxes of the company, dealing with the remaining assets after payments of debts, and representing the company in legal procedures.
Please refer to the second paragraph of 6.12 Restructuring or Reorganising Agreement for information on the rejection of contracts established before the bankruptcy liquidation.
The law does not provide for any special rules on dealing with the contract in involuntary liquidation. Executory contracts in execution will be treated as if the company is in its normal state, and the liquidation committee does not have a separate legal ground to terminate executory contracts at its discretion.
Rights of Set-off
Please refer to section 6.14 Rights of Set-off for details of set-off rights in bankruptcy liquidations.
Set-offs between a creditor and the debtor in involuntary company liquidations are allowed and can be made in accordance with the PRC Contract Law. Set-offs are not subject to any special suspension or restrictions because of involuntary liquidation.
Please refer to the third paragraph of 6.3 Roles of Creditors for details of bankruptcy liquidations while in involuntary company liquidations, there is no specific legal requirement to disclose to the creditors the information of the proceeding as long as their claims are paid in full. In practice, the liquidation committee will make reasonable disclosure to the creditors at its own discretion.
Distribution of Value
The debtor’s assets shall, in a bankruptcy liquidation, after full payment of the bankruptcy expenses and debts incurred for the common good of the creditors, be liquidated according to the following hierarchy: labour claims, social securities and tax claims, unsecure creditors’ claims.
If no assets can be distributed, or after completion of asset distribution, the administrator will apply to the court to terminate the proceeding. Upon receipt of the application, the court will, within 15 days of the day when the administrator applied to terminate the proceeding, make a decision on whether to do so.
In the case of an involuntary company liquidation, after the liquidation committee finishes distribution of the company’s assets, paying the remaining value to shareholders and complete de-registration of the company, it will apply to the court for a ruling to terminate the proceeding.
Please refer to 6.8 Asset Disposition and Related Procedures for details regarding bankruptcy liquidations.
In involuntary liquidations, a liquidation committee has broad discretion in asset disposition under the supervision of the court. The liquidation committee has the responsibility to dispose of the assets in a way that is in the best interests of both the company and its creditors.
In both bankruptcy and involuntary liquidations, the administrator and the liquidation committee will execute an assets disposition and distribution plan. In most cases there will be little space for the company or creditors to disrupt the disposal process.
Please refer to 6.10 Priority New Money for details on bankruptcy liquidation.
New money is rarely injected in involuntary liquidations, which proceeds under the condition that the company is solvent.
Please refer to 6.6 Use of a Restructuring Procedure to Reorganise a Corporate Group for details on bankruptcy liquidation.
There is no clear legal basis to consolidate a corporate group in cases of involuntary liquidation.
Please refer to 6.3 Roles of Creditors for details on bankruptcy liquidation.
There is no creditors’ committee in involuntary liquidation.
Please refer to 6.7 Restrictions on a Company's Use or Sale of its Assets for details.
Article 5 of the Bankruptcy Law prescribes that a foreign bankruptcy judgment shall be recognised and enforced according to treaties or conventions, or the principle of reciprocity. However, the article only provides a general basis for recognition of foreign bankruptcy proceedings without any guidance on implementation.
Recognition of foreign restructuring or bankruptcy proceedings in our jurisdiction is decided on a case-by-case basis.
The PRC has entered into protocols or treaties with 37 countries and independent economic areas on civil judicial assistance but none of these explicitly includes protocols or arrangements co-ordinating cross-border bankruptcy proceedings.
Since PRC law does not currently provide detailed guidance on cross-border proceedings, there are no specific rules determining the governing law. If a PRC court recognises a foreign proceeding, the rules of international private law as well as the PRC Civil Procedure Law might be referred to as the primary legal sources.
Foreign creditors will receive the same treatment as domestic creditors under a PRC proceeding without discrimination.
In the minutes of the National Court Work Conference on Bankruptcy Trials issued by the Supreme Court in 2018, it is pointed out that the interests of domestic and foreign creditors shall be balanced subject to the principle of equal protection of claims in the same group. Domestic employee claims, tax claims and secured claims, however, shall be protected adequately and preferentially.
Statutory officers, under the PRC regime, are the administrators appointed by courts in restructuring and liquidation proceedings. There is no other type of statutory officer under PRC law.
The responsibilities of the administrator include:
The administrator reports directly to the court and is under the supervision of the creditors’ meeting as well as the creditor’s committee (if established). The fiduciary duty of the administrator requires it to perform its role diligently and with due care in accordance with the law.
According to Provisions of the Supreme People's Court on Designating the Administrator during the Trial of Enterprise Bankruptcy Cases (the Provisions), courts can appoint administrators – through random draw, competitive bidding or direct designation upon recommendation – from the regional administrators’ rosters issued by High Courts in different provinces.
The High Courts are responsible for preparing the administrator rosters in its jurisdiction area according to certain statuary criteria. The rosters may include institutions such as law firms, accounting firms, bankruptcy liquidation firms and qualified individual practitioners.
In most cases, the court will randomly appoint a firm on the roster to act as administrator by way of lucky draw. Individual practitioners acting as administrators are hardly seen in judicial practice. In significant cases, the court may use competitive bidding to select an administrator from the roster.
Administrators can be replaced at the request of the creditors’ meeting, to the court, on grounds of incompetence or unlawful and improper conduct. The court shall examine the facts and decide whether to replace the administrator as requested by the creditors’ meeting within 12 days of the request being submitted.
The administrator can voluntarily resign from its position with fair and proper reasons upon the court’s approval.
The court has the discretion to replace the administrator ex officio under certain legal conditions.
The company management and directors have a statutory duty to co-operate and support the work of the administrator. In practice, it is crucial that the administrator forms an active and co-operative relationship with the management and directors, which will effectively facilitate the bankruptcy process and maximise value for stakeholders.
The administrator will normally take the place of the previous management and the board will cease to function. If the debtor applies for, and the court approves, debtor in possession, the management will remain in place and continue to operate the debtor under the supervision of the administrator.
Apart from the liquidation committee, institutions such as law firms, accountancy firms as well as liquidation firms can serve as administrators. No creditor, creditor representative, owner, officer or director can serve as the administrator.
In most cases, law firms or accountancy firms serve as the administrator. It is uncommon for other restructuring professionals who do not have licences to practice law or accounting to serve as administrator, but they may be engaged as advisors or interim management by the administrator.
In restructuring and bankruptcy processes, accountants and appraisers are the professionals most frequently employed by the administrators. Attorneys are frequently employed by creditors, investors or other participants.
Sometimes financial advisers, experts in the relevant industries and other professionals are also employed by administrators, creditors, investors or other participants in the processes.
In bankruptcy processes, a court-appointed administrator will be compensated from the debtor’s assets, this is prioritised as a bankruptcy expense.
The administrator may employ auditors (when the administrator is a law firm), attorneys (when the administrator is an accounting firm), or appraisers if needed. In complex cases, administrators may also employ other professionals such as financial advisers or experts in related industries. These professionals will assist the administrator in bankruptcy matters and their compensation will also be regarded as a bankruptcy expense, which will be paid with priority from the assets of the debtor.
Creditors, investors and other participants in bankruptcy processes may also employ attorneys, financial advisers and other professionals at their own expense.
In an out-of-court restructuring, the creditors’ committee is typically formed by banks; may also employ professionals such as attorneys, financial consultants and other professionals; and compensation for these advisors is usually paid by the debtor in a mutually agreed manner prescribed in a contract rather than by law.
The administrator can employ attorneys, accountants and appraisers at its own discretion as long as the selected professionals are without conflicts of interest and charge a reasonable price. The administrator will report any engagement to the court.
Professional advisors owe duties and responsibilities to the parties that engage them, such as the administrator, creditors, investors, etc.
If attorneys are employed by the creditors, investors, or other participants, they will, among other things, issue due diligence reports and legal opinions, assist in preparing a reorganisation plan or other legal documents, participate in the creditors’ meeting and represent the engaging party in litigation and arbitration.
Auditors are usually responsible for issuing an audit report on the company’s financial status and assisting in taking stock of the company’s assets.
Appraisers are usually employed by the administrator and responsible for the evaluation of the company’s assets, so as to facilitate the administrator in the disposition of the assets or the creation of a restructuring plan.
The use of arbitration is not common in China. In the context of bankruptcy proceedings, arbitration will not be used unless the debtor and any interested party have agreed on an arbitration clause before the commencement of a bankruptcy proceeding; or the administrator and a third party agree on an arbitration clause in a new contract signed after the commencement of a bankruptcy proceeding.
PRC law requires that all litigation initiated after the commencement of the proceeding should be tried by the court which accepts the bankruptcy petition. Therefore, in restructuring and bankruptcy situations, the administrator prefers litigation to arbitration.
After the commencement of a bankruptcy proceeding, mediation is rarely utilised by parties to settle disputes because mediation may cause the debtor to compromise its interests for the purpose of a final settlement. The debtor’s estate belongs to the creditors; thus the administrator needs to seek prior approval from the creditors for any compromise of interests. Considering the procedural costs, the administrator tends to avoid meditation while, in very rare cases, the administrator may decide to bring mediation to the creditors for their approval where litigation is not practical or efficient enough to address the issue.
In a judicially supervised bankruptcy or restructuring proceeding, courts will not order mandatory arbitration or mediation. In addition, labour disputes will be arbitrated, as a procedural precondition, before they can be brought to trial, regardless of any bankruptcy processes.
Pre-bankruptcy agreements to arbitrate can be enforced in statutory bankruptcy proceedings. If an administrator rejects a claim lodged by a creditor, the creditor may initiate an arbitration based on a pre-existing arbitration agreement for the determination of its claim.
The Arbitration Law, the Civil Procedure Law as well as the corresponding judicial interpretation are the main sources governing arbitrations and mediations in the PRC. In addition, the Law of Mediation and Arbitration of Labour Dispute governs labour disputes exclusively.
An arbitration tribunal may be composed of either three arbitrators or one arbitrator. An arbitration tribunal composed of three arbitrators shall have a presiding arbitrator. If the parties agree that the arbitration tribunal shall be composed of three arbitrators, they can each appoint or entrust the chairman of the arbitration commission to appoint one arbitrator. The parties jointly select or jointly entrust the chairman of the arbitration commission to appoint the third arbitrator who shall be the presiding arbitrator. If the parties agree that the arbitration tribunal shall be composed of one arbitrator, they can jointly appoint or jointly entrust the chairman of the arbitration commission to appoint the arbitrator.
An arbitrator shall be impartial and independent, and shall meet one of the conditions set forth below:
The PRC Bankruptcy Law provides that directors may be held liable if:
Directors may also bear criminal liabilities under the PRC Criminal Law, which prescribes penalties for officers who are directly in charge of or responsible for concealing company assets, making false balance sheet or asset records or illegally distributing assets before repaying debts; if severe losses are caused to the creditors or other stakeholders during liquidation.
If directors are involved in any of the behaviours set out in 12.1 Duties of Directors, administrators can assert claims against those directors. If the administrator fails to take prompt action , creditors may also initiate action against the director.
The appointment of a chief restructuring officer is uncommon in our jurisdiction. Some wholly foreign-owned companies may appoint such officers during bankruptcy proceedings but their capacity in the domestic proceedings is rather limited. The officer appointed reports directly to the shareholders of the company and may serve in the role of a co-ordinator on behalf of the shareholders to assist the work of the administrator.
Under Chinese law there is no concept of shadow directorship. However, the Chinese Company Law imposes obligations on the actual controller of a company. If an actual controller has caused damage to the company’s creditors due to his or her negligence in management of the company’s assets or financial books which has led to a stagnancy of procedure in liquidation, he or she can be held liable for the creditors’ loss.
Shareholders can be held legally liable under certain conditions in company liquidations. Shareholders of limited liability companies or the controlling shareholders of stock companies shall assume joint and several liability to the creditors if they fail to perform their obligation to liquidate the company after dissolution of the company, and as a result of this failure the company’s books and key documents are dissipated to the extent that it can no longer be liquidated. The actual controller of a company shall assume the same liability in the aforesaid circumstance.
Historical transactions that took place within one year of the proceeding can be set aside if they are:
Also, when a debtor cannot pay its due debts and becomes insolvent or obviously lacks liquidity, any payment of debt to an individual creditor that took place within six months of the proceeding can be set aside unless the payment is beneficial to the debtor’s assets as a whole.
Acts of concealment or the transfer of assets for the purpose of debt evasion as well as the fabrication of debts or the acknowledgement of untruthful debts, no matter if it is prior to or after the commencement of the proceeding, will be deemed as invalid.
Please refer to 13.1 Historical Transaction.
The administrator has the statutory power to set aside or annul historical transactions before the court while an individual creditor has no such power. However, the creditors are entitled to supervise the work of the administrator by making requests or propositions regarding these questionable transactions if they have certain evidence of their questionability.
Claims against the aforesaid transactions can be brought in both restructuring and bankruptcy proceedings.
Valuations are indispensable in the restructuring and bankruptcy processes and serve the following key purposes:
The administrator employs an appraiser and initiates a valuation process under the supervision of the court.
The creditor with an interest in certain property can also initiate an independent valuation for its own use with the permission of the administrator.
The PRC Assets Valuation Law, which took effect in 2016, is a comparatively new law focusing on regulation of the valuation industry. Yet PRC law is almost silent on bankruptcy valuation and how it should differ in the context of bankruptcy from common practices.
As valuation is an indispensable process in restructuring and bankruptcy proceedings, more and more attention has been paid to the connection between valuations and bankruptcy procedures. Appraisers, acting in the current market, are groping their way towards making bankruptcy valuations more meticulous and with higher reference value for the purpose of assisting restructuring and bankruptcy.
The High Court in each province or municipal city will have its own “white list” of qualified valuation institutions which can be employed by the courts in judicial procedures. In restructuring and bankruptcy proceedings, the administrator will in most occasions select a valuation institution from the local white list thought it is not mandatory. A court will rarely appoint any judicial or similar officers to render views on valuations
Valuation methods typically utilised in practice may include:
Usually administrators will engage an evaluation firm to conduct the valuation.
Undertaking an M&A process or other forms of market testing in order to mitigate valuation challenges is hardly seen among current practices in the PRC.
Under the current law, there is no explicit standard applicable to forward looking valuations.
Liquidation value as well as market value are both comparators in restructuring cases, while a liquidation case may only require a report on liquidation value.