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Amendments to the Takeovers and Share Buy-back Codes

Following a consultation paper issued on 19 May 2023, and its consultation conclusions released on 21 September 2023, the Securities and Future Commission (“SFC”) amended the Codes on Takeovers and Mergers and Share Buy-back (the “Codes”) with effect on 29 September 2023.

The amendments seek to codify existing practices of the Executive Director of the SFC (the “Executive”), clarify the SFC’s position on certain aspects of the Codes, streamline processes and introduce green initiatives.

Below are some of the key changes to the Codes which might be of interest. This article does not intend to be a full summary of all the amendments made to the Codes.

Expanding the definition of “close relatives”

Background –  The term close relatives” is primarily relevant to the definitions of “acting in concert”, “associates” and “disinterested shares”. In the Codes:-

“Acting in concert”

The term “acting in concert” is crucial in determining whether a mandatory offer obligation arises under Rule 26 of the Codes.

The Codes define “acting in concert” as “comprising persons who, pursuant to an agreement or understanding (whether formal or informal), actively cooperate to obtain or consolidate “control” of a company through the acquisition by any of them of voting rights of the company”, and presume nine classes of persons to be acting in concert with others in the same class (unless the contrary is established).  The term “close relatives” is relevant to the following three of the nine classes:

  • Class (2): “A company with any directors (together with their close relatives, related trusts and companies controlled by any of the directors, their close relatives or related trusts) of it or of its parent”;
  • Class (6): “directors of a company (together with their close relatives, related trusts and companies controlled by such directors, their close relatives and related trusts) which is subject to an offer or where the directors have reason to believe a bona fide offer for their company may be imminent”;
  • Class (8): “An individual (including any person who is accustomed to act in accordance with the instructions of the individual) with his close relatives, related trusts and companies controlled by him, his close relatives or related trusts”.


The term “associates” is primarily relevant to the disclosure of dealings under Rule 22 of the Codes.  Amongst other things, the term “associates” include:

  • “the directors (together with their close relatives, related trusts and companies controlled by any of the directors, their close relatives or related trusts) of any subsidiary or fellow subsidiary of the first person”.

“disinterested shares”

The term “disinterested shares” is primarily relevant to the approval or acceptance threshold for a delisting or privatisation proposal. The term refers to “shares in the company other than those which are owned by the offeror or persons acting in concert with it”.

Amendment The definition of “close relatives” is expanded to include a person’s grandparents, grandchildren, sibling’s spouse (or de facto spouse), sibling’s children, and the parents and siblings of the person’s spouse (or de facto spouse).

With the expanded definition of “close relatives”, a larger group of persons will be presumed to be “acting in concert” and/or are “associates” with disclosure obligations. Practically, this may mean more time and effort are needed to gather information on the relevant parties’ relationships and to rebut presumptions. In the case of a Rule 3.5 announcement, requiring more time for its preparation increases the burden of maintaining confidentiality. A larger group of presumed “concert parties” may also mean that less shares will qualify as “disinterested shares” in delisting or privatisation transactions.

Clarifying the definition of  “voting rights”

Background – The term “voting rights” is used extensively throughout the Codes. For example, it is used in the context of defining the concept of “control”, in determining whether a mandatory offer obligation has been triggered, whether a partial offer will be subject to certain requirements or whether an acceptance condition can be imposed or has been met.

Previously, voting rights was defined as “voting rights currently exercisable at a general meeting of a company whether or not attributable to the share capital of the company”. This caused confusion as to whether shares subject to voting restrictions (which rendered their voting rights not currently exercisable) would be treated as voting rights for the purpose of the Codes.

Amendment – A new note is added to the definition of “voting rights”, clarifying that voting rights subject to any restrictions to their exercise by agreement, by operation of law and regulations or pursuant to a court order will still be taken into account as “voting rights” for the purposes of the Codes, except for those attached to treasury shares.

The amendment provides certainty in structuring deals, for example when considering whether a mandatory offer obligation will be triggered. It also removes the potential abuse of increasing or reducing the number of voting rights to suit one’s purposes by entering into or terminating agreements to restrict the exercise of such voting rights.

“90% disinterested share” threshold for delistings and compulsory acquisitions

Background – Delistings and compulsory acquisitions following an offer are dealt with under Rule 2.2 and Rule 2.11 respectively:-

Rule 2.2 – Approval of delistings by independent shareholders

Rule 2.2 provides that neither the offeror (nor any persons acting in concert with the offeror) may vote at any meetings of the offeree company’s shareholders (convened in accordance with the Listing Rules) to approve a delisting. The resolution to approve the delisting must be subject to:

(a) approval by at least 75% of the votes attaching to the disinterested shares that are cast either in person or by proxy at a duly convened meeting of the holders of the disinterested shares;

(b) the number of votes cast against the resolution being not more than 10% of the votes attaching to all disinterested shares; and

(c) the offeror being entitled to exercise, and exercising, its rights of compulsory acquisition.

The Note to Rule 2.2 provides that the Executive is prepared to waive the compulsory acquisition requirement in (c) above for an offeree company which is incorporated in a jurisdiction where compulsory acquisition is not available, if arrangements are put in place to meet certain conditions, one of which is:

  • the resolution to approve the delisting is subject to the offeror having received valid acceptances amounting to 90% of the disinterested shares.

Rule 2.11 – Exercise of rights of compulsory acquisition

Rule 2.11 provides that where an offeror seeks to acquire or privatise a company through the use of compulsory acquisition rights, it can only be exercised if:

acceptances of the offer and purchases (in each case of the disinterested shares) made by the offeror and persons acting in concert with it during the period of 4 months after posting the initial offer document total 90% of the disinterested shares.

While both the Note to Rule 2.2 (regarding companies in jurisdictions without compulsory acquisitions) and Rule 2.11(regarding companies in jurisdictions with compulsory acquisitions) contain a similar requirement – the acquisition of 90% of the disinterested shares, Rule 2.11 explicitly includes purchases made by the offeror (and its concert parties) in determining whether the 90% threshold has been met, while the Note to Rule 2.2 is silent as to whether such purchases would also be included in determining the 90% threshold. In practice, the Executive has allowed such purchases to be included in determining the 90% threshold.

Moreover, while the existing language of Rule 2.11 only counts purchases made after the posting of the initial offer document towards the 90% threshold, in practice the Executive has always included shares purchased after the publication of a Rule 3.5 firm intention announcement.

Amendments – The SFC revised both the Note to Rule 2.2 and Rule 2.11 to align them in allowing shares acquired by an offeror and its concert parties from the date of the Rule 3.5 announcement to be counted towards the 90% threshold under both rules.

The amendments provide certainty and flexibility in meeting the 90% threshold requirement as required in the Codes. Nevertheless, for Rule 2.11, as compulsory acquisition rights are governed by the company law of the place of incorporation of the offeree company, care must still be taken in determining whether the corresponding threshold has been met under the relevant law.

Attendance and voting at meetings held to consider a scheme of arrangement, capital reorganisation or a delisting proposal

Background – Whether the deal is a privatisation by way of a scheme of arrangement, or an offer leading to delisting, both require shareholders’ approval at a duly convened meeting, as shown below.

Rule 2.10

Pursuant to Rule 2.10, a privatisation by way of a scheme of arrangement may only be implemented if the following requirements are met:

(a) the scheme is approved by at least 75% of the votes attached to the disinterested shares that are cast either in person or by proxy at a duly convened meeting of the holders of disinterested shares; and

(b) the number of votes cast against the resolution to approve the scheme at such meeting is not more than 10% of the votes attaching to all disinterested shares

Rule 2.2

Rule 2.2 provides that the resolution to approve a delisting must be subject to:

(a) approval by at least 75% of the votes attaching to the disinterested shares that are cast either in person or by proxy at a duly convened meeting of the holders of the disinterested shares;

(b) the number of votes cast against the resolution being not more than 10% of the votes attaching to all disinterested shares; and

(c) the offeror being entitled to exercise, and exercising, its rights of compulsory acquisition.

Note: The first two conditions of Rule 2.2 are equivalent to those provided in Rule 2.10.

In SFC’s “Takeovers Bulletin” of December 2021[1], the Executive noted from two recent local judgments[2] that there were two schools of thought regarding the form of shareholders’ meetings under Rule 2.10:-

  • “Prohibition view” – the offeror and his concert parties are prohibited from voting on the relevant resolution.
  • “Non-prohibition view” – the offeror and his concert parties are not prohibited from voting, but their votes cannot be counted for the purposes of complying with the Takeovers Code.

Prior to these recent judgments, the Executive had always taken the non-prohibition view to be the correct view, as it would allow the Codes to operate alongside the company laws of those jurisdictions which permitted an offeror and its concert parties to attend court meetings in a privatisation scheme. The adoption of the “prohibition view” in the case of Re Chong Hing Bank Limited created uncertainty.

Amendments – References to “duly convened meeting of the holders of the disinterested shares” in Rules 2.2 and 2.10 are replaced with “duly convened meeting of shareholders”, and a new Note 8 is added to Rule 2 to clarify that the expression “duly convened meetings of shareholders” refers to shareholders’ meetings which are duly convened in accordance with an offeree company’s constitutional documents and the company law of its place of incorporation. For the purposes of the Codes, any votes cast by the offeror and its concert parties will simply be disregarded.

The amendments remove the uncertainty created by Re Chong Hing Bank Limited and confirm the “non-prohibition view” regarding shareholders’ meetings, thereby allowing the Codes to operate alongside the company laws of different jurisdictions.

Irrevocable commitments

Background – Often as a tactic to securing a deal, an offeror might seek irrevocable commitments from significant shareholders to accept (or not accept) an offer or vote favorably on resolutions relating to an offer.

Under the previous version of the Codes, an offeror may only approach “a very restricted number of sophisticated investors who have a controlling shareholding” for irrevocable commitments. In all other cases the Executive will have to be consulted.

Amendment – Note 4 to Rules 3.1, 3.2 and 3.3 is amended to streamline the process of obtaining irrevocable commitments such that:-

  • an offeror does not need to consult the Executive in advance before approaching a shareholder with a “material interest”. In this context, a shareholder has a “material interest” when he and his concert parties control directly or indirectly 5% or more of the voting rights of an offeree company);
  • an offeror must continue to consult the Executive when approaching “non-material” shareholders; and
  • the maximum number of shareholders an offeror can approach is six, which includes both shareholders who have a material interest and those who do not.

The amendment provides certainty and flexibility in structuring a deal.

Adding the “market capitalization” test for the purpose of applying the Chain Principle

Background – In determining whether a “chain principle offer” has to be made when someone acquires statutory control of a company (the first company) which directly or indirectly controls 30% or more of the voting rights of a listed company (the second company), the SFC will apply a principle-based approach on a case by case basis and consider: (a) whether the holding in the second company is significant in relation to the first company, based on such factors as the assets and profits of the two companies (the “Substantiality Test”), and (b) whether one of the main purposes of acquiring control of the first company was to secure control of the second company (the “Purpose Test”). If either the Substantiality Test or the Purpose Test is satisfied, the Executive will require a “chain principle offer” to be made.

Amendments – Codify the existing practice and add the following guidance to Note 8 to Rule 26.1 in respect of the Substantiality Test:-

  • where both companies in question are listed companies, the SFC will also consider the respective market capitalization of the two companies under the Substantiality Test.
  • Where anomalous results would be produced from using the asset and profit values in the most recent audited statements, a “look-back” period of the three most recent audited financial periods can be taken into account.

Practice Note 19 has been revised to provide further guidance on the Executive’s approach to the Substantiality Test, including the specific line items for assets and profits to be taken into account and the reference dates for market capitalisation.

Executive granted explicit powers to end an offer period and to issue “put up or shut up” orders

Background – Under the previous version of the Codes:

  • An offer period would end upon the occurrence of one of the events described in the definition of “offer period”, none of which events is within the control of the offeree company while some require certain initiative on the part of the offeror or potential offeror. As an offeree company is subject to additional requirements and restrictions once an offer period starts, a prolonged offer period may affect the company’s normal business operations.
  • The Executive does not have an express power to end an offer period and would need to rely on his implicit power to do so under Section 2.1 of the Introduction to the Codes which gives the Executive the power to modify or relax any rule under the Codes.

Amendments – The Codes are amended to expressly grant the Executive the powers to:-

  • end an offer period; and
  • to issue a put up or shut up order (“PUSU order”) (i.e. requiring a potential offeror to announce its firm intention to make an offer within a set time period (put up), or to announce that it will no longer proceed with an offer (shut up), which is one of the events that will end an offer as described under the definition of “offer period”).

In determining whether to issue a PUSU order, the Executive will take all relevant factors into account, including: (a) the current duration of the offer period; (b) the reason for the offeror’s delay in issuing a firm intention announcement; (c) the proposed offer timetable; (d) any adverse effects that the offer period has had on the offeree company; and (e) the conduct of the parties to the offer.

Such amendments give certainty to offer periods and allow offeree companies to avoid unnecessary disruptions to normal business operations caused by prolonged offer periods.

Definition of on-market share buy-back

Background – On-market share buy-back is the most utilized “exemption” to the more stringent requirements for share buy-backs under the Codes.

Amendment – The definition of “on-market share buy-back” is amended to clarify that (i) such share buy-backs must be made pursuant to the Stock Exchange’s automatic order matching system; and (ii) the company and its directors must not have any involvement in the solicitation, selection or identification of the seller of the securities, whether directly or indirectly.

The amendment prevents companies from arranging what is in effect a “pre-selected” off-market share buy-back conducted via the Stock Exchange’s facilities to enjoy the “on-market share buy-back” exemption.


This was the first time since 2018 where the Executive has conducted a comprehensive review of the Codes. Overall, the amendments provide greater certainty, clarified market concerns regarding the application of the Codes, as well as streamlined the relevant processes.

For a complete overview of the amendments made to the Code, please refer to the SFC’s Consultation Conclusions.

[1] The Takeovers Bulletin of December 2021 can be retrived from: 20211229SFC-Takeover-Bulletine.pdf

[2] See (i) Re Cosmos Machinery Enterprises Ltd (HCMP 601/2021, [2021] HKCFI 2088) in which the “non-prohibition view” was adopted and (ii) Re Chong Hing Bank Limited (HCMP 968/2021, [2021] HKCFI 3091). ) in which the “prohibition view” was adopted.

27 October 2023
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SFC Proposes Guidelines to Regulate Market Soundings

The Securities and Futures Commission (“SFC“) is seeking public input on proposed guidelines to regulate market soundings, which are pre-transaction communications used by market participants to gauge investor interest and assist in determining transaction details.

The below summarises the SFC’s proposed guidelines:


  • Market sounding involves the communication of non-public information, regardless of its price-sensitive nature, with potential investors prior to announcing a securities transaction.
  • It aims to gauge investor interest and determine transaction specifications, such as size, pricing, structure, and selling method.
  • Market sounding is conducted by licensed or registered individuals, acting as “Market Sounding Intermediaries”, which include the Disclosing Person sharing information and the Recipient Person receiving it


The guidelines do not apply to communications regarding:

  • speculative transactions or trade ideas proposed without consulting the potential Market Sounding Beneficiary[1] or lacking certainty;
  • transactions in size, value, structure or selling method commensurate with ordinary day-to-day trade execution; and
  • public offerings of securities.

Core Principles for Market Sounding Intermediaries

  1. Market integrity.
  2. Robust governance.
  3. Effective policies and procedures specifying expectations in conducting market soundings.
  4. Adequate physical and electronic information barriers.
  5. Review and monitoring controls to detect suspicious behaviours, unauthorized disclosure, or information misuse.
  6. Utilise senior-approved recorded communication channels

Obligations of Disclosing Persons

  • Pre-sounding procedures: Assess if disclosed information is non-public, obtain the Market Sounding Beneficiary’s consent for market soundings and determine disclosure details for recipients.
  • Standardised script: Use an approved script, and provide written confirmation to the Recipient Person summarising content of the market sounding communications.
  • Cleansing: Determine whether information ceased to be non-public and inform the Recipients Person accordingly.
  • Record keeping: For at least seven years.

Obligations of Recipient Persons

  • Handling of market sounding requests: Designate trained person(s) to receive market soundings, and inform the Disclosing Person his preference for receiving market soundings.
  • Record keeping: For at least seven years.

The SFC’s proposals will undergo a 2-month public consultation, with the final guidelines taking effect upon gazettal. A further 6-month transition period will be provided for industry compliance.

These guidelines aim to address divergent practices, promote market integrity, and establish standards. Market participants and interested parties are encouraged to offer feedback on the proposed guidelines.

Access the full consultation paper here for more details.

[1] Market Sounding Beneficiary means a client, an issuer or an existing shareholder selling in the secondary market.

27 October 2023
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The Exchange Publishes Consultation Paper on GEM Listing Reforms

On 26 September 2023, the Stock Exchange of Hong Kong Limited (the “Exchange“)  published a consultation paper proposing GEM listing reforms (the “Consultation Paper“). The consultation window is open for six weeks and the deadline for submitting respondence is 6 November 2023. The new Listing Rules are expected to take effect in early 2024.

The proposals aim to encourage more companies to list on GEM whilst maintaining high standards of investor protection.

Key proposals include re-introduction of a streamlined transfer mechanism for eligible GEM issuers to transfer to the Main Board, the introduction of a new alternative eligibility test for companies in the high-growth segment, and removal of mandatory quarterly reporting requirements.

If the proposals under the Consultation Paper are to be adopted, it will be the first major reform of GEM listing in the recent years.

Key Proposals:

I. Initial Listing Requirements

  • The Exchange proposes to introduce an alternative financial eligibility test (the “market capitalisation / revenue / R&D test“) to target high growth enterprises that are heavily engaged in research and development (the “R&D“) activities.
  • GEM listing applicants using this new test are required to have:

(a) an adequate trading record of at least two financial years (which is consistent with the existing requirements);

(b) an expected market capitalisation of at least HK$250 million at the time of listing;

(c) revenue of at least HK$100 million in aggregate for the two most recent audited financial years, with year-on-year growth over the two financial years; and

(d) incurred R&D expenditure of at least HK$30 million in aggregate for the two financial years prior to listing, where the R&D expenditure incurred for each financial year must be at least 15% of its total operating expenditure for the same period.

  • The existing one-year ownership continuity and two-year management continuity requirements will continue to apply under this new test.
  • The Exchange also proposes to reduce the post-IPO 24 month lock-up period imposed on controlling shareholders of GEM issuers to 12 months.

II. Continuing Obligations

A. Compliance Officer and Compliance Adviser

  • The Exchange proposes to:

(a) remove the existing requirements for one of the executive directors of a GEM issuer to assume responsibility for acting as the issuer’s compliance officer;

(b) shorten the period of engagement of the compliance adviser of a GEM issuer so that it ends on the date on which the issuer publishes its financial results for the first (instead of the second) full financial year commencing after the date of its initial listing; and

(c) remove GEM requirements (to align with Main Board requirements) in relation to a compliance adviser’s responsibilities with regards to:

(i) due diligence on listing documents published, and dealing with the Exchange, in relation to certain transactions during the period of its engagement of the compliance adviser; and

(ii) disclosure of interests of the compliance adviser for such purpose.

B. Periodic Reporting Requirements

  • The Exchange proposes to remove quarterly reporting as a mandatory requirement (changing such a requirement into a recommended best practice) for GEM issuers (to align with Main Board requirements).

III. Transfers to the Main Board

  • Qualified GEM issuers (those that meet all the qualifications for listing on the Main Board) will be able to transfer their listings to the Main Board without the need to:

(a) appoint a sponsor to carry out due diligence; or

(b) produce a “prospectus-standard” listing document.

  • A transfer applicant must:

(a) meet all the qualifications for listing on the Main Board;

(b) have published financial results for three full financial years as a GEM issuer with ownership continuity and control and no fundamental change in its principal business;

(c) meet:

(i) a daily turnover test – a streamlined transfer applicant must have reached a prescribed minimum daily turnover threshold on at least 50% of the trading days over a prescribed reference period of 250 trading days before the transfer application and until the commencement of dealings on the Main Board (the “Reference Period“);

(ii) a volume weighted average market capitalisation test – a streamlined transfer applicant must have a volume weighted average market capitalisation over the Reference Period that could meet the minimum market capitalisation requirement for Main Board listing; and

(iii) a clean compliance record requirement (i.e. not have been held to have committed a serious breach of any Listing Rules and not be subject to any investigation by the Exchange in relation to a serious breach of any Listing Rules) over the 12 months preceding the transfer application and until the commencement of dealings on the Main Board.

  • The Exchange proposes to exempt GEM transferees the Main Board initial listing fee.
  • A GEM issuer which is not qualified for a streamlined transfer would be required to appoint a sponsor to conduct due diligence and publish a “prospectus-standard” listing document for its transfer.
4 October 2023
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Liquidators’ New Ally: Hong Kong courts are backing up requests for directors’ cooperation during winding-up proceedings

This article discusses how Hong Kong courts, as the court of a company’s COMI (centre of main interest) could lend assistance to local liquidators appointed over a foreign company – which goes as far as to compel a Hong Kong ex-director passing resolutions to appoint the liquidator as director of foreign subsidiaries in place of himself.

The subject company (“Company“) in Re China Properties Group Limited (in Liquidation) [2023] HKCFI 2346 has a structure commonly seen in Hong Kong-listed companies (see Re NewOcean Energy where we previously discussed the second requirement to wind up foreign companies). The top-co is a Cayman company which directly holds 4 BVI subsidiaries, which in turn hold various Hong Kong subsidiaries. These Hong Kong subsidiaries then directly hold Mainland subsidiaries which own substantive assets and operations of the Company ([7]) – foreshadowing that the ex-director being Hong Kong-based is a key consideration in this case (more on this later).

At issue is that the ex-directors were being extremely difficult and uncooperative in the liquidation process where no progress has been made for about 3 months. For example, none of the directors filed statement of affairs and the liquidators were prevented from accessing the Company’s books and records ([12]). Worse still, one of the ex-directors commenced proceedings in the BVI seeking declaratory relief that he is the sole director of the BVI subsidiaries when the liquidators took out an inter-partes summons in Hong Kong seeking orders against the directors of the Company so as to give effect to the winding-up order ([14]-[15]). This, culminated into the present urgent summons – if the ex-director was successful in the BVI proceedings, it would give him power to appoint further directors, which would make it difficult for the liquidators to take control of the BVI subsidiaries (and their assets) ([18]).

The General Principles and In Personam Jurisdiction 

Recorder William Wong SC held at [19] that Hong Kong courts “have a duty to assist liquidators appointed [by the same] to effectively and efficiently discharge their professional duties in the best interest of the general body of creditors“. In this regard, an “orderly, speedy and cost effective liquidation for the best interest of all stakeholders” is key for Hong Kong to maintain its status as an international financial centre and insolvency hub ([20]). It was with this in mind, he adopted Re Yung Kee Holdings Limited (2015) 18 HKCFAR 501 to order the ex-director who is indisputably subject to the in personam jurisdiction of the Hong Kong courts to pass the written resolutions so as to facilitate the effective administration of the liquidation. In particular, citing [39] of Re Yung Kee that,

Every court…has an implied jurisdiction to make whatever orders are necessary to give effect to its own judgments. In the present case all the individual respondents reside in Hong Kong are subject to the in personam jurisdiction of the Hong Kong court. Accordingly were this Court to be of the view…that a winding up order ought to be made…we would propose to give leave to the…liquidator to apply to the Court of First Instance for such orders…as may be necessary to make the underlying assets of the Company available to the liquidator.


Insofar one was to doubt whether such order by the Hong Kong courts usurped the jurisdiction of the BVI court, Recorder Wong SC provided a three-fold answer.

First, following the line of authorities Re Lamtex Holdings Ltd [2021] HKCFI 622 and Re Global Brands Group Holdings Ltd (in Liquidation) [2022] HKCFI 1789, Hong Kong laws have past the point where assistance was only to given by courts of the place of incorporation. In the spirit of comity, and more importantly to reflect the commercial reality that these companies often have a top-co in “letterbox” offshore jurisdiction which have no connection other than formality and registration, Hong Kong courts as the court of COMI are prepared to lend assistance to local liquidators appointed over foreign entities.

Secondly, while the ex-director was entitled to take out whatever proceedings he thinks fit (whether in Hong Kong or the BVI), it is paramount that “this Court discharges its own facilitative duties to promote the effectiveness and efficiency of liquidations in this jurisdiction” ([40]). Recorder Wong SC was of the view that it is not right for the Hong Kong courts to stand by and simply pass on the burden to the BVI courts.

Thirdly, judicial comity dictates that within the four corners of local laws, courts should offer mutual assistance to each other so that orders of courts can be given their full effects in the best interest of cross-border liquidations. Bearing in mind the abovementioned General Principles, it will not be cost effective for the liquidators, in every case, to have to apply for a winding up order against the subject company in the place of incorporation and to ask that court to appoint them to be liquidators ([41]-[42]).


Re China Properties Group Limited is a timely reminder that directors of a company in liquidation are meant to render assistance to liquidators and there is nothing spectacular or oppressive for them to do so. If they are being difficult about it, the courts would be prepared to grant suitable orders to compel their cooperation. Further, we can be sure that COMI, rather than the place of incorporation is the criteria the courts are concerned with in recognising and assisting liquidators of companies wound up in Hong Kong.

See full judgment here: https://legalref.judiciary.hk/lrs/common/search/search_result_detail_frame.jsp?DIS=154981&QS=%28tiffany%2Bwong%29&TP=JU&currpage=T


29 September 2023
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A Wrong Email Address – Court of First Instance Sets Aside Enforcement Order of an Arbitral Award Due to Invalid Service of the Notice of Arbitration

The Hong Kong Court of First Instance recently handed down its decision, G v P [2023] HKCFI 2173, where it set aside an enforcement order of an arbitral award due to invalid service of a notice of arbitration, which resulted in the Respondent not being given a reasonable opportunity to present his case.


The Applicant, as lender, and the Respondent, as borrower, entered into a loan agreement and a supplemental loan agreement (the “Supplemental Loan Agreement“) with the following dispute resolution clause (the “Arbitration Clause“):

Any dispute or difference arising out of or in connection with the Loan Agreement and this Supplemental Loan Agreement shall, at the option of the Claimant (or the Plaintiff, as may be applicable), be referred to and finally resolved by arbitration administrated by the Hong Kong Arbitration Society and in accordance with the HKAS Online Arbitration Rules for the time being in force or by court proceedings in Hong Kong courts.”

A dispute arose between the parties under the Supplemental Loan Agreement and was resolved by way of arbitration commenced at the option of the Applicant (the “Arbitration“).  The Respondent did not serve any defence in the Arbitration and the Arbitration proceeded without the Respondent’s participation.  On 28 November 2022, an arbitral award was made by the Hong Kong Arbitration Society in favour of the Applicant (the “Arbitral Award“).

On 2 December 2022, on the application of the Applicant, the Court made an order granting leave to enforce the Arbitral Award against the Respondent (the “Enforcement Order“).

Subsequently, the Respondent applied to set aside the Enforcement Order on two grounds:

  • there was no valid arbitration agreement between the Applicant and the Respondent; and
  • the Respondent was not given a reasonable opportunity to present arguments in the Arbitration.

Ground 1: Absence of a valid arbitration agreement

The Respondent argued that the Arbitration Clause was not a valid arbitration agreement, as it was an optional arbitration clause which did not compel the parties to arbitrate. An arbitration agreement could not be valid in the absence of the element of compulsion for the parties to arbitrate.

In determining the validity of the Arbitration Clause, the Court stated that the ultimate question was one of construction of the clause in question, to ascertain the objective intention of the parties at the time of contracting.  Each case would turn on the terminology used in the contract, with the contract construed as a whole.

The Court held that the Arbitration Clause was valid and binding. It considered that the option in the Arbitration Clause was only conferred on the lender – the Applicant – and not on the borrower – the Respondent. Therefore, when the Applicant exercised the option to commence arbitration proceedings, the Respondent was compelled to arbitrate. The Respondent did not have an option under the Arbitration Clause as to whether to arbitrate or not.

Ground 2: Inability to present case

The Respondent claimed that he was not given a reasonable opportunity to present his case. The Court stated that the core and determining factor for this was whether the Respondent had been given proper notice of the Arbitration (the “Notice of Arbitration“) .

The Applicant argued that given that the Notice of Arbitration was served on the Respondent at the email address specified in the Supplemental Loan Agreement, and the Arbitration Clause provided that the Arbitration was to be in accordance with the HKAS Online Arbitration Rules (“Online Rules“), the Notice of Arbitration was deemed to be properly received by the Respondent under Article 2.1 of the Online Rules, which provides that a notice of arbitration is deemed to be have been received by a party if it is transmitted to:

  • the email address confirmed by the recipient upon participating in the online arbitration proceedings;
  • the email address “specified in any applicable arbitration agreement or any agreement”; or
  • in the absence of the above, any email address which the recipient holds out to the world at the time of such transmission.

The Respondent only provided the email address of “[email protected]” in the Supplemental Loan Agreement. Further, the only evidence on service of the Notice of Arbitration was in the Arbitral Award itself, which stated that the Notice of Arbitration was transmitted by email to the email address of “[email protected]”, which was different from that specified in the Supplemental Loan Agreement. The Court decided that the Arbitral Award must be taken to be correct and accurate by virtue that there was no amendment thereto.

Accordingly, the Court held that the deeming provisions in Article 2.1 of the Online Rules could not apply and did not even come into operation, when the Notice of Arbitration was not transmitted to the email address “specified in [the] applicable arbitration agreement”.  Further, since the Respondent never participated in the Arbitration, there was no evidence of “[email protected]” having been specified or confirmed by the Respondent upon his participation in the Arbitration. Nor was there any evidence to support any possible claim that “[email protected]” was the Respondent held out to the world as his email, at the time of the transmission of the Notice of Arbitration.

In the circumstances, there was no valid service of the Notice of Arbitration on the Respondent, and consequently, he was not given the opportunity to present his case before the Arbitral Award was made.  As such, the Enforcement Order was set aside.

Key Takeaways

This case provides us with the following key takeaways.

First, the unsuccessful jurisdictional challenge for the optional arbitration clause once again confirms the Court’s pro-arbitration stance and willingness to give effect to parties’ agreement.

Secondly, even with the Court’s pro-arbitration approach, failure to effect proper service of the Notice of Arbitration may lead to an eventual setting aside of the arbitral award and any enforcement order, by reason that the Respondent would not be given a reasonable opportunity to present his or her case.

Thirdly, it serves as a reminder that typographical errors in arbitral awards should be corrected to avoid possible prejudice in subsequent enforcement proceedings.

For details, please refer to the full judgment here.

29 September 2023
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