Steep Rise in Bankruptcy Cases
According to the latest statistics released by the Supreme Court, 10,132 bankruptcy and restructuring cases were closed in the year 2020, amounting to debts of CNY1.2 trillion. The total number of cases represents an increase of over 200% compared to the same period in 2019. As for regional statistics, the Shanghai courts accepted an aggregate of 1,567 bankruptcy cases in 2020, which was an increase of 32.8% compared to 2019. In Shenzhen, a special economic zone where the intermediate court was the first bankruptcy court in the PRC and played a pioneering role in bankruptcy practice, statistics show that the number of bankruptcy cases closed by the Shenzhen intermediate court in 2020 totalled 909, representing an increase of 64% compared to the same period in 2019.
From 2019 to 2021, the market has witnessed a rocketing number of bankruptcies of listed companies. By the end of September 2021, approximately 31 listed companies had gone through or were undergoing bankruptcy proceedings, accounting for over half of the number accrued from 2006 to 2018, which was 51 in total. This infers that the PRC stock market has gradually been keeping pace with economic fluctuations and reflecting the changes of capital flow, and the bankruptcy regime has been much more mature and prepared to play a critical role in such turbulence.
As the economy has shifted from a state of high-speed growth into a period of moderate growth, especially during the COVID-19 pandemic, the financial restructuring and insolvency regime has become a powerful tool in improving and accelerating market-exit efficiency, which can play a crucial role in boosting supply-side structural reforms. There has been 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 as well as real estate and education.
Corporate Bond Defaults
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, has pushed forward the development of market-oriented financial restructurings and insolvencies. In 2019, the total amount of bond default reached CNY149.4 billion, representing a yearly peak since the first case of corporate bond default in 2014. In 2020, there was a moderate decline in the total amount of bond default, which totalled CNY112.8 billion by the end of September, as the total volume of financing slumped because of the COVID-19 pandemic. However, the default rate is still high, due to the economic downturn. As a result, more market entities may seek to utilise financial restructurings and insolvencies to address the difficulties and risks affecting them.
Banks Taking a More Active Role
According to the 2020 statistics released by the China Banking and Insurance Regulatory Commission (CBIRC), the amount of non-performing loans in financial institutions totalled CNY3.47 trillion and the figure in commercial banks had reached CNY2.7 trillion by the end of 2020. The statistics also show that in 2020, the non-performing loan ratio of Chinese commercial banks reached 1.8%, accounting for 78% of all non-performing loans in financial institutions. Such a severe situation has pushed the banks to take a much more active role in the restructuring and insolvency market. The CBIRC has also played a much more active role in supporting banks in settling non-performing financial risks. CNY3.02 trillion in non-performing loans was cleared in the year 2020, superseding the aggregate amount in the last 12 years.
The Bankruptcy Law
The Supreme Court issued a third judicial interpretation relating to the implementation of the PRC Enterprise Bankruptcy Law ("the Bankruptcy Law"), which came into effect on 28 March 2019. The new judicial interpretation clearly prescribes on several issues where there was previously a lack of statutory guidance.
Additionally, 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. On 15 April 2020, the Supreme Court also issued “Opinions on Promoting the Efficient Trial of Bankruptcy Cases in Accordance with the Law”, emphasising the optimal use of bankruptcy methods to support economic growth, especially during the COVID-19 pandemic.
The Shenzhen special economic zone has been set up as a pilot for the initiation of bankruptcy regulation for individual citizens. The regulation was published by the Shenzhen intermediate court and came into effect in March, 2021. A few attempts have been made to enact this regulation but no official assessment is currently available.
Breakthrough in Cross-Border Proceedings
On 14 May 2021, the Supreme Court published two documents, "The Minutes of the Supreme Court and the Government of the Hong Kong Special Administrative Region (the 'HKSAR') on Mutual Recognition of and Assistance to Bankruptcy Proceedings between the Court of the Mainland and the HKSAR" (“the Minutes”) and "The Supreme Court’s Opinion on taking forward a pilot measure in relation to Recognition and Assistance to Bankruptcy Proceedings of the HKSAR" (“the Opinion”). As a starting point, the Opinion will firstly take pilots in Shanghai, Xiamen (Fujian Province), and Shenzhen (Guangdong Province).
These two documents have become a milestone on the path to establishing a practical and advanced cross-border insolvency regime in the PRC by providing guidelines to both mainland and Hong Kong practitioners when dealing with cross-jurisdiction cases. This initiative can also be a stepping stone for future developments in cross-border insolvency proceedings between the PRC and other countries.
In August 2021, in Re Samson Paper insolvency proceedings, the High Court of the HKSAR sent an application for assistance and recognition of the proceedings to the Shenzhen Intermediate Court pursuant to the Opinion, which represented the first attempt to practise under the Opinion.
The main legal sources governing reorganisations, liquidations and insolvencies in the PRC include:
There are three types of proceedings available under the Bankruptcy Law – reorganisation, reconciliation and 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, the committee 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 the initiation of 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 reorganisation proceedings under the law.
In voluntary proceedings, a debtor has to adequately prove its insolvency by submitting an audit or other equivalent documents to the court, showing that the debtor’s assets are not enough, or are unlikely to be enough, to cover all its debts.
In involuntary proceedings, a creditor must prove 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 reorganisation or a bankruptcy liquidation of the financial institution.
However, there are no specific implementation measures governing the reorganisation and bankruptcy of financial institutions, or other types of public institution, apart from the Securities Companies Risk Disposal Regulations, which regulate the insolvency of securities companies.
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 as yet. Bankruptcy practitioners do, however, have an incentive to promote out-of-court workouts, as the market is growing very quickly and insufficient court capacity means that the number of cases that can be heard 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 for 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 in the US, where the major stakeholders 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, however, 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, although it is widely believed that the purpose of such a committee is to adopt timely and effective actions to protect the creditors’ interests and to contain, where 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 adviser to assist in due diligence and the 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, government authorities or other types of creditor representatives may be 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 reduction 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 is 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.
Cram-down 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 not clear 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 secured creditor has no special procedural protection other than the rights discussed in 4.2 Rights and Remedies.
No distinction is made between members of the class of secured creditors – all will have the same rights and priorities. Unsecured creditors, however, may sometimes be divided into a small-claim group and an ordinary unsecured class depending on necessity and individual cases.
The secured creditor enjoys 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 deferral of a liquidation.
However, unsecured creditors do 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. In addition, 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.
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 in the same voting group, representing two thirds or more of the total amount of the creditors' claim, vote in favour of the draft restructuring plan, the plan is 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 cram-down power, subject to certain criteria prescribed by law. For the criteria that need to be met for the court to exercise this power, 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 claim-holder, whose claim is subject to modification, voluntarily agrees to the arrangement.
The requirements for commencing restructuring/reorganisation can be found in 2.4 Commencing Involuntary Proceedings.
The purpose of a restructuring proceeding is to settle the debts of the company fairly 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 fully complies with the legal requirements.
The typical timelines and milestones that apply to formal reorganisation proceedings are as follows.
If the petition is made by:
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 is not available in China.
The administrator will conduct material examinations of the claims upon reviewing the documents and evidence submitted by the creditors. The results of this review will be filed for further review at the creditors’ meeting, and the undisputed claims will be confirmed by a court ruling which serves as 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 behaves in a way that similarly damages the interests of the creditors; 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 and where 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 reorganisation, 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. The administrator will be appointed from a roster published by the courts in the different provinces. See 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 have a supervisory role and will not be involved in daily operational decision-making.
The administrator, or a debtor in a 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.
Creditors are classified into four groups: the secured creditors’ group, the employees' group, the tax group, and the unsecured creditors’ group.
The creditors’ committee will 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 may include, at most, nine members.
The creditors’ committee has the following powers and duties:
When the creditors' committee performs its duties, it has the right to require the administrator and debtor to 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 proceedings.
Where there is one (or more) voting groups, or votes against the draft restructuring plan, the court may exercise the power to cram-down 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 on 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, although there are no statutory provisions on implementation. In practice, where the assets and liabilities of entities within a corporate group are co-mingled to such an extent that separating them would be unfeasible or prohibitively costly, the court may – upon petition by the administrator – include all affiliates within the group in 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 assets management plan and the assets disposition plan made by the administrator and then approved by the creditors’ meeting.
Normally, the sale of assets during the proceeding is conducted by public auction, unless the creditors’ meeting agrees otherwise.
Contractual transactions regarding the sale of assets are only 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. Creditors are neither allowed to bid nor act as stalking horses in a sale process under the proceeding.
If a contract of transaction was 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 adhere to 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 so that the debtor can 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 the investor consents to this, the law does not prohibit the practice as long as the newly established encumbrance will not be detrimental to the pre-existing secured creditor(s).
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 it to the court for ruling, after review by the creditors’ meeting.
A reorganisation plan will be submitted by the administrator or the debtor for approval by 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 cram-down 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 adhere to a contract that was established before the proceeding, but has not been fully performed by both parties. The administrator will send written notice to the contractual party stating its willingness to continue or desire to terminate the contract, within two months of the commencement of the proceedings. If the administrator fails to do so within the two-month period, the contract is automatically deemed to be terminated.
If the contract is terminated, the counterparty can make a claim against the debtor on the basis of the right to be compensated for 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 a 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 a claim arises from an event that occurred at least one year prior to the commencement of the bankruptcy proceedings).
A reorganisation 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 that fails to perform the terms of the agreement may bear liability for breach of contract or otherwise be 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 of the debtor upon conclusion of the reorganisation. In practice, it is up to the creditors and investors (if any) to decide whether to approve or accept the draft reorganisation plan that lets the existing equity owners retain some ownership.
There are 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 its 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 China.
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 has been established within the statutory time period to conduct voluntary liquidation.
The statutory requirements for commencing a bankruptcy liquidation are discussed in 6.1 Statutory Process for a Financial Restructuring/Reorganisation. The requirements for an involuntary company liquidation can be found above in this section.
In a bankruptcy liquidation, how a creditor's claims are calculated and recognised, at what point and by whom is discussed in 6.1 Statutory Process for a Financial 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 are similar 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 value received by the shareholders from the 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.
See 6.1 Statutory Process for a Financial Restructuring/Reorganisation for the timelines relevant to bankruptcy liquidations.
The difference in timeline between a bankruptcy reorganisation and a bankruptcy liquidation is that the law does not provide a time limitation for the latter, and the duration of bankruptcy liquidation proceedings therefore varies greatly on a case-by-case basis.
In 2018, the High Court of Shanghai issued 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 must 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, but can apply to the court for an extension if necessary.
This is dealt with in 6.5 Trading of Claims against a Company.
Stays and Moratoriums
This is dealt with in 6.2 Position of the Company, which 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 a company in the context of an involuntary company liquidation.
Continuation of Company Business
See 6.2 Position of the Company as well as 9.2 Statutory Roles, Rights and Responsibilities of Officers 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 a public announcement to creditors, dealing with unfinished company business, clearing the taxes of the company, dealing with the remaining assets after payment of debts, and representing the company in legal procedures.
See 6.12 Restructuring or Reorganisation Agreement for information on the rejection of contracts established before the bankruptcy liquidation.
The law does not provide any special rules on dealing with the contract in an 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
Refer to 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 in an involuntary liquidation.
See 6.3 Roles of Creditors for details of bankruptcy liquidations during involuntary company liquidations. There is no specific legal requirement to disclose information about the proceeding to the creditors, as long as their claims are paid in full. However, in practice, the liquidation committee will make reasonable disclosure to the creditors at its own discretion.
Distribution of Value
In a bankruptcy liquidation, after full payment of the bankruptcy expenses and debts incurred for the common good of the creditors, the debtor's assets will be distributed according to the following hierarchy: labour claims, social security and tax claims, unsecured 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 administrator applying to terminate the proceeding, make a decision on whether to do so.
In the case of an involuntary company liquidation, after the liquidation committee has finished distributing the company’s assets, paying the remaining value to shareholders, and it has completed de-registration of the company, it will apply to the court for a ruling to terminate the proceeding.
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.
Refer to 6.3 Roles of Creditors for details on bankruptcy liquidation.
There is no creditors’ committee in an involuntary liquidation.
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 China is decided on a case-by-case basis.
Pursuant to the Opinion governing bankruptcy proceedings relating to the HKSAR and the mainland, the intermediate courts of the pilot cities have jurisdiction over such bankruptcy proceedings initiated in the HKSAR. The administrator appointed in the Hong Kong proceedings can petition the mainland courts for recognition and assistance by submitting documents including:
Note that these requirements only apply to proceedings relating to the HKSAR and the mainland. Nevertheless, they offer reference to proceedings opened in other jurisdictions that may seek recognition and assistance from the PRC courts.
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.
Pursuant to the Opinion governing bankruptcy proceedings relating to the HKSAR and the mainland, after recognition of a Hong Kong proceeding, litigations against the debtor in mainland courts shall be suspended and interim measures shall be terminated. In addition, the Opinion also grants the administrator of a Hong Kong proceeding similar rights and powers prescribed under the PRC Bankruptcy Law, provided that such proceeding is recognised by the mainland court.
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.
The Minutes and the Opinion published by the Supreme Court now provide a consistent guideline and facilitate bankruptcy proceedings between the mainland and HKSAR, which can be regarded as a forerunner in this area and may provide models for future regularisation of cross-border cases.
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.
The Opinion, just published, further stresses that the assets of debtors in mainland China shall be distributed to preferred claims in priority pursuant to PRC bankruptcy law before being distributed fairly to other debtors under the Hong Kong proceedings.
The Civil Procedure Law and its judicial interpretation provide sources for the recognition and enforcement of foreign judgments or rulings. For the purpose of being recognised, the foreign judgments or rulings should be binding and enforceable and there should be international treaties or reciprocity between that jurisdiction and the PRC.
Recognition and enforcement of foreign judgments and rulings may not violate the basic principles of domestic laws or state sovereignty and security, or public interests. Meanwhile, the PRC courts refuse to recognise foreign judgments or rulings due to the absence of treaties or reciprocity. The PRC has entered bilateral judicial assistance treaties on civil and commercial matters with 39 jurisdictions. In most of these treaties, there are only provisions in circumstances where recognition and enforcement may be declined, with no explicit provisions on making positive decisions.
If a foreign judgment has been recognised, the PRC court will decide to enforce it, pursuant to the Civil Procedure Law.
In 2019, the PRC signed the Final Act of the 2019 Convention on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters (“HCCH Convention”). However, the PRC had not finalised its ratification at the national level at the time of publication of this guidance.
Under the PRC regime, statutory officers are appointed by the courts as administrators in reorganisation 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 creditors' 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 the 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 a random draw, competitive bidding or direct designation upon recommendation – from the regional administrators’ rosters issued by the High Courts in different provinces.
The High Courts are responsible for preparing the administrator rosters in their area of jurisdiction according to certain statutory 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 the grounds of incompetence or unlawful and improper conduct. The court will 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 the 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 the administrator, but they may be engaged as advisers or interim management by the administrator.
The PRC Bankruptcy Law is silent on directors’ duties, such as putting financially troubled companies into insolvency proceedings or stipulating any positive actions to be taken by directors before opening the proceedings. However, the law provides that legal representatives of distressed companies or, at the insolvency court’s decision, financial officers and other specific managers, shall perform the following duties during insolvency proceedings:
The PRC Bankruptcy Law also provides that directors may be held liable if:
Directors may also bear criminal liability 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 negative behaviours set out in 10.1 Duties of Directors, an administrator can assert claims against those directors. If the administrator fails to take prompt action, the creditors may also initiate action against those directors.
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 acknowledgement of untruthful debts, no matter if prior to or after the commencement of the proceeding, will be deemed invalid.
Refer to 11.1 Historical Transactions.
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, creditors are entitled to supervise the work of the administrator by making requests or propositions regarding questionable transactions, if they have certain evidence of their questionability.
Claims against the aforesaid transactions can be brought in both reorganisation and bankruptcy proceedings.
This article introduces the trends and developments in Chinese bankruptcy law from late 2020 and into 2021, divided into three parts. The first part reviews many impacts of the complicated situation in the financial markets and emphasises that the debt crisis in public listed companies and their holding companies/parent companies, the new energy automobile industry, real estate companies and local investment institutions deserves attention. The second part discusses areas in which China has made progress, such as the revision of the bankruptcy law, the individual bankruptcy system, and the results achieved in the field of cross-border bankruptcy. The third part describes the development of bankruptcy practitioners, including the professionalisation of trials and the widespread establishment of bankruptcy administrators' associations and bankruptcy law research associations.
In general, China's bankruptcy legislation has continued to evolve in 2021, making remarkable progress.
External Environment and Key Industries
The impact of the economic situation
In 2021, the impact of COVID-19 on China has gradually diminished, the epidemic prevention and control has entered the normalisation stage. The US government has imposed a number of sanctions on Chinese companies that have had greater impacts on some export industries, which promotes many companies converting to domestic trade.
Notable key industries
There are a number of sectors where the debt crisis is unfolding and needs particular attention. Among them, there are industries in which debt problems have occurred before and are still continuing, industries in which the severity of the debt problem has gradually been highlighted in recent years, and industries in which the debt problem has not yet exploded on a large scale but which should be vigilant and guard against this.
Holding company or parent company of a listed company
The shareholders of listed companies tend to maximise the use of listed companies as financing tools. The high stock pledge rate of listed companies has been of wide concern during 2018, having triggered the need for loan recovery via forced liquidation by financial institutions. The registration-based IPO system, other than guiding investors not to pay too much attention to “shell value” but to investment value, will also increase the number of distressed listed companies. Therefore, the number of insolvencies of listed companies or their holding companies/parent companies is increasing.
The real estate industry
The debt crisis of small and medium-sized real estate companies first attracted attention several years ago, particularly among those mainly engaged in commercial property development. In August 2020, the capital monitoring and financing management rules of key real estate enterprises formed by the People's Bank of China and the Ministry of Housing and Urban-Rural Development have strengthened the control over the head enterprises, which forces real estate companies to face problems such as high financing costs, high asset-liability ratios, and poor liquidity.
Recently, the debt crises of large real estate groups has been frequently reported. Such groups are complex, involving different regions and industries. In the meanwhile, the related fields such as the construction industry are also affected mostly.
The new energy automobile industry
In the field of new-energy vehicles, in order to promote the development of this area, the government has issued special support and subsidy policies. Some enterprises are highly dependent on these. As the government raises the threshold of the policies, increasing numbers of new-energy vehicle manufacturers face the risk of debt and even go into bankruptcy. The state has also strengthened the rectification and window guidance for existing energy vehicle companies.
Local investment company.
Most of these companies are owned or even controlled by local governments, and they play an important role in the adjustment of local industrial structure and infrastructure construction. However, in practice, some investment companies are embodied by other financial institutions or large companies as a manifestation of government support. Local investment companies are required to provide guarantees in loan issuance, mergers and acquisitions of local companies, and such guarantees are often large in amount. At the same time, compared with state-level companies, the governance structure and operational capabilities of local investment companies is relatively weak, and there are certain debt risks. From the perspective of bond defaults, the number of debtors of medium and large state-owned enterprises has increased, such as the default of Liaoning state-owned enterprise Brilliance Holdings. This shows that even state-owned enterprises that deal with debt problems in a market-oriented and rule-of-law approach, especially in bankruptcy procedures, will gradually be accepted by state-owned assets management departments.
Changes in the Laws and Judicial Policies
The revision of the bankruptcy law has become a key legislative work
According to the 2021 legislative work plan passed in principle by the 78th Chairman of the National People's Congress, the revision of the Bankruptcy Law 2006 is a key legislative work. The main person in charge of the National People's Congress has conducted investigations and inspections on the implementation of the Bankruptcy Law 2006 in many regions and courts, which shows that the legislature attaches great importance to the revision of the bankruptcy law.
The first personal bankruptcy legislation
The current bankruptcy law in China refers to the Enterprise Bankruptcy Law. The subject of this law is the legal body of the enterprise (including financial institutions), and organisations other than the legal body of the enterprise can refer to this law for bankruptcy liquidation. The legislation of natural person bankruptcy has been blank for a long time. In practice, however, business owners often run into financial troubles when their companies fail to repay their debts, as loans from various institutions often require personal guarantees from them, and even from their family members.
At the same time, it is not unusual for individual consumers to become effectively bankrupt because of excessive debts. Whether out of the pursuit of the integrity of the bankruptcy legal system or the need to solve practical problems, the theory field and practice field are both full of expectation for the enactment of the personal bankruptcy law. In Zhejiang province, which has the most developed private economy, eg, in Taizhou and Wenzhou, the courts have begun a practical exploration of individual debt liquidation mechanisms.
On 26 August 2020, the Standing Committee of Shenzhen Municipal People's Congress passed the Regulations on Personal Bankruptcy of Shenzhen Special Economic Zone, and has taken effect on 1 March 2021, which is the first personal bankruptcy legislation in mainland China. The ordinance takes into account the following ideas:
In addition to Shenzhen, courts in Jiangsu, Zhejiang and other places are also exploring the centralised liquidation of personal debts in the form of informal legislation, so as to provide opportunities for the rebirth of honest entrepreneurial failures.
Cross-border insolvencies received attention during the implementation of the "Enterprise Bankruptcy Law (for Trial Implementation)" in 1986. After the 1997 Asian financial crisis, during the bankruptcy case of Guangdong International Trust and Investment Corporation, the Hong Kong court suspended the litigation case in the seizure order based on its discretion. It was the first time that the bankruptcy ruling of a Chinese court had been recognised outside the territory. In 2007, Article 5 of the Enterprise Bankruptcy Law realised the "ice-breaking" of the cross-border bankruptcy law in China. However, due to limited practical experience in cross-border bankruptcy, Article 5 only provides principle guidance.
At the end of 2019, the Hong Kong High Court recognised and assisted in the implementation of the bankruptcy of Huaxin International Group Co, Ltd, accepted by the Shanghai Third Intermediate People's Court. This was only the second time that Hong Kong had recognised and assisted in bankruptcy procedures in the mainland. Soon after, on 26 May 2020, the Hong Kong High Court made a ruling, approving the bankruptcy proceedings of Shenzhen Nianfu Supply Chain Co, Ltd under the designated bankruptcy administrator and carried out by the Shenzhen Intermediate People’s Court. At the same time, it issued an authorisation order for the administrator to perform their duties. It was the first time that the bankruptcy administrator had been allowed to represent the parent company to fully exercise the rights of the Hong Kong subsidiary.
Meanwhile, the mainland of China has become increasingly open to cross-border bankruptcy, and has recently achieved results in the assistance of the mainland and Hong Kong in bankruptcy procedures. On 14 May 2021, the Supreme People’s Court issued the minutes of the meeting with the Hong Kong Special Administrative Region government on mutual recognition and assistance in bankruptcy procedures between the Mainland and Hong Kong Special Administrative Region courts, and issued opinions on pilot work to the People’s Courts of Shanghai, Xiamen, Fujian Province, and Shenzhen City, Guangdong Province to carry out work to recognise and assist in bankruptcy procedures in Hong Kong. Although the opinion did not adopt the expression of "non-main process", it did refer to the 1997 Model Law of the United Nations Commission on International Trade Law. According to this opinion, it will take about one month from the submission of the application to the approval.
The Bankruptcy Practitioners
Since the Enterprise Bankruptcy Law 2007 came into effect, the bankruptcy law has received increasing attention not only from banks and state-owned companies, but also from private companies and entrepreneurs, who have gradually become aware of the bankruptcy risks of their own companies and the positive functions of bankruptcy proceedings. At the same time, the bankruptcy practitioners, including judges and intermediary organisations, have developed significantly.
The growth of bankruptcy professionals
Along with the more frequent acceptance of bankruptcy cases by the courts has come recognition of the uniqueness of bankruptcy trials and the professions involved. The number of judges has greatly increased in the last few years. Bankruptcy courts have been set up in more than 12 large cities one after the other, where the courts exercise centralised jurisdiction over bankruptcy cases.
The establishment of administrators’ associations and law research associations
Bankruptcy administrators have also strengthened their team through certain measures. The most noteworthy aspect has been the establishment of administrators’ associations and bankruptcy law research association. By 1 January 2021, 123 administrators’ associations had been established, 13 of them at provincial level, many of which also had been established bankruptcy law research associations.
The functions of these administrators’ associations in the various regions are slightly different, mostly including promoting inter-industry communications and formulating professional guidelines. In addition, some administrators’ associations have assumed the management function of members. The establishment of the bankruptcy law research associations is helpful to promote the exchange and communication of the theory and practice of bankruptcy law, and promote the effective development of bankruptcy liquidation, bankruptcy reorganisation, implementation and transfer of bankruptcy and other practical work.