Modified Universalism and the Proposed Adoption of the UNCITRAL Model Law on Cross-Border Insolvency in Hong Kong - From the Hanjin Shipping Bankruptcy Case

Abstract

In Hong Kong, the principal piece of legislation governing corporate insolvency is the Companies (Winding Up and Miscellaneous Provisions) Ordinance ('C(WUMP)0'). In about October 2015, the Companies (Winding Up and Miscellaneous Provisions) (Amendment) Bill 2015 ('the 2015 Bill'), was introduced in the Legislative Council of Hong Kong. At the consultation stage, insolvency practitioners and the Hong Kong Institute of Certified Public Accountants proposed that Hong Kong should consider adopting the UNCITRAL Model Law on CrossBorder Insolvency ('Model Law') to give greater certainty to the framework of the cross-border insolvency practice and to align with the development of various developed economies, including Australia, the United Kingdom, Canada, the United States, Japan and South Korea. Such a proposal was, however, not taken by the Legislative Council and the Hong Kong Government. It was the view of the Hong Kong Government that there were only 23 signatories adopting the Model Law, and most of the Hong Kong major trading partners had not done so. It would be better for Hong Kong to keep in view international developments before deciding whether to adopt the Model Law. As a result, when the 2015 Bill was passed in May 2016, there were no provisions seeking to incorporate the Model Law into the legislation of Hong Kong.