Zhang Jiaqi (BBA(Law)&LLB)
Hong Kong Journal of Legal Studies (Volume 18, 2024), pp. 1 - 29
Abstract: When the Companies Court in Hong Kong examines a winding-up petition on insolvency grounds, and the debt that is relied on contains a valid arbitration clause, what is the correct approach for the Court so as to balance all competing interests and achieve a fair and reasonable outcome? This seemingly vanilla question has given rise to enormous debates and uncertainties in a variety of common law jurisdictions, including Hong Kong, Singapore, and the UK. This paper aims to present the development on the area of law, reconcile the competing values underlying arbitration and insolvency, and propose an ideal standard to be adopted by the Hong Kong courts. It also makes observations on judicial practices of Hong Kong courts on this issue since 1997, which may offer some insights to practitioners when drafting agreements which are governed by Hong Kong law and contain an arbitration clause.
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