On 23 September 2016, Senior Associate Mr. Franky Fung together with our Banking Department Legal Executive, Mr. Man Wong attended the grand opening ceremony and banquet of Vpower Finance Security (HK) Limited (“the Company”).

The Company founded by Shenzhen Vpower Finance Security Company Limited (“Shenzhen Vpower”), is the first pilot professional finance security company designated by the head office of The People’s Bank of China. Shenzhen Vpower provides multifarious finance security services, ranging from cash convoy operations to vault security services. With the total asset value reaching over RMB 200 million as of today, Shenzhen Vpower continues to provide finance security covering all banking branches in Shenzhen. As the Hong Kong office of Shenzhen Vpower, the Company enjoys the advantage of tapping into the success of Shenzhen Vpower in terms of its business model.

Stevenson, Wong & Co. takes pride in being entrusted as their legal advisor and assist in the establishment of their office in Hong Kong.

For more enquiries about this event, please contact our Mr. Eric Lui.

(中文) 家族信托消灭“分家”纠结（2）
(原载于财富管理杂志2016年6月刊)

(续前文)
晚育，再婚，晚婚，老夫少妻家庭里，要不要二胎是个共同痛点。二胎大大增加了继承安排与执行的难度！

财产分配与继承难题
孩子在很多国家都是继承第一顺位人。所以父母辈的公司股权，房产，现金等有形无形的资产都需要平均分配。先不要提遗产继承公证费（资产规模的1-2%）或遗产税税金（资产规模的50%左右）缺位导致放弃继承的情况。

在中国的继承流程中，主要关联人因为各种原因，例如孩子在国外考试，父母行动不便身体不适，妻子不满意分配方案，子女不能接受突然冒出的兄弟姐妹等不出席继承权公证会议，继承流程就比较难走下去。如果老大本来就不喜欢老二，此时就成为最佳报复时机。

假如家里拥有在北京三环，五环的房子各一套；分割时应该是每套房子一人一半，还是每人一套房子已经折腾了很多家庭。有些孩子在国外生活，不希望继承父辈在国内的房产或企业：兄弟间协商资产定价时，是另外一个难点。继承资产方如何拿出现金先行清算也可能受不同国家继承流程的约束。

弄不好就是亲人们互相告上法庭，香港的镛记烧鹅不就是这类故事的加长版，二代已经继承了家业很久了，兄弟股东间的纠纷导致家族企业消散。

继承人之间如果存在监护关系时，利益冲突在日后生活里会愈来愈明显。成绩优秀的老二被外国大学录取，需要使用遗产支付海外高额的学费及生活费。老大是希望老二留在国内读公立大学还是拿到奖学金才能出国？游学最好免了，生活中奢侈品消费等最好也减少。 长兄为父，严父难当，这一切是为了锻炼小弟弟还是不想资产被稀释？

当老二的生活需求长期无法得到满足，小孩子心里难受。到了叛逆期，后果更加不堪设想，家庭矛盾的种子由此种下。

家族信托彻底消灭“分家”的纠结
在以前，成家的兄弟以分家各过各，女儿靠边站的方式继承父辈资产。时代变了，继承方式也发生了变化。分家的纠结还在于，用什么方式让孩子得到继承。这几年，信托成了最多的选择。

原本计划给大女儿，二女儿的抚养费，剥离在独立家族信托里，受到成立人订立的受益条款约束，法律支持信托公司专款专用，不被监护/抚养人婚姻，债务问题等影响。孩子们的权益有了保护，各人心里也就踏实了。信托公司按照成立人的约定，应付孩子们的教育，医疗，结婚，创业，生育，生活等支出；减少家人，监护人，抚养人，利益关系人间的利益冲突，专业第三方的参与有效缓冲家庭矛盾。

资产以家族信托持有的更大意义是可以避免继承流程，彻底消灭继承流程时所需文件不全；后代没法交付例如继承公证费，印花税，契税，增值税，遗产税等导致放弃继承的风险。同时彻底消灭“本金”分配安排的纠结：家人都没有股权，有能力接班的也只有管理权，没有能力时罢免其职务；房子按需求也只有使用权（如家庭成员数字，居住地，学区要求等）；大家按情况都享有生活费，这样可以避免很多正面冲突。

每个家庭结构都会影响信托最终设计。设立信托时与其家人充分沟通，了解他们的想法需求，包括各人的能力与担忧；在未来不可预见的身体状况下，与家族办公室测试不同分配方案的现金支出可行性。尽可能绕开不同国家婚姻法，税法，继承法的影响，最大程度减低万一出现不可预知的冲突时对资产耗损，家人生活的影响。

可怜天下父母心，对孩子负责，是每一对父母要用行动去做到的。

如想了解更详细的海外信托对资产保护或继承安排的功能，请联系你的法律顾问/理财顾问/家族办公室。史蒂文生黄律师事务所成立了香港及新西兰信托公司，可为客户提供信托咨询或受托人服务。 最近还获得香港家族办公室协会颁发“最具特色家族海外信托策划服务奖”

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免责声明： 于此提供的资料只供参考，须以有关国家/地区法律顾问的法律意见和有关政府行政与司法机关对于适用的法例的解释和应用为准；上述资料亦受制于适用法例的任何不时的更新与修改，如因上述资料而引至任何人士或单位蒙受任何损失，该人士或单位须自行承担一切责任

Company A, incorporated in Canada, held 75% of three operating companies in the business of mineral mining while Company B held the remaining 25%. Company A as guarantor entered into a borrowing facility with certain companies as borrowers. Company A also charged some shares in two companies in favour of the lender bank.

Company A went into financial difficulties. Subsequently, the lenders rights were transferred to Company C (within the same group of companies as Company B). A notice of acceleration was served on the borrowers. The initial security agent also resigned and was replaced by Madison, a Hong Kong company. As the matter went on, the discussions to resolve the financial difficulties failed and joint administrators were appointed by the High Court in London.

The administrators were concerned that Madison would sell the charged shares at an undervalue which will prejudice the equity of redemption. An application was made in London (the centre of main interests of Company A) and in Hong Kong in an attempt to stall the sale of the charged shares.

Court’s decision

The Court first considered the issue whether liquidators appointed in a jurisdiction (England in this case) other than the place of incorporation (Canada in this case) are recognised under Hong Kong law. The court supports (without deciding) the idea of recognising such liquidators and thus having the jurisdiction to render active assistance to overseas insolvency proceedings due to the commercial necessity of cross border insolvency.

The second issue is, in the lack of the statutory provisions, what types of orders are available to such liquidators under common law and equitable principles. The Court found that there were no statutory provisions which provided for a moratorium of the enforcement of the security. In the instant case, the application was not made on the ground that the proposed enforcement would prejudice the equity of redemption or the liquidated company subsequently had been able to fulfill the payment obligations. Hence, the application had no common law or equitable basis to rest on. On this basis, the court rejected the application.

Implications

The present case reflects the natural spread of modified universalism in cross-border insolvency cases, under which the court will endeavour to provide assistance to each other without awaiting sanctions as agreed by international conventions. Although liquidators not appointed in the place of the incorporation are recognised, the court still treads cautiously when it comes to granting restrictive sanctions to aid foreign insolvency proceedings.

Stevenson, Wong & Co. was awarded the “Best Legal Advisory in Non-Financial Services Categories” in Wealth APAC – International Private Wealth Management (IPWM) Forum & China Awards 2016. SW Partner, Mr. Hank Lo, and Head of Business Development (China), Ms. Connie Yeung, attended the Forum cum Award Presentation Ceremony on 21st September 2016 in Shanghai, China. There were over 200 awardees and representatives attending the event. SW was again recognized in China for its professional services following the establishment a by SW as a professional trustee which also received the “Most Distinctive Family Overseas Trust Planning Services Award” in May 2016

The IPWM China Awards is a large-scale industry event hosted by WEALTH Magazine, endorsed by China Banking Association and co-organized by China Chief Economist Forum. Participants include reputable family offices, private banks, independent wealth management institutions and other high-net-worth organizations in areas of trust, insurance, law, immigration, overseas education, with a wide geographical coverage over 30 provinces, autonomous regions and municipalities in China. After WEALTH Magazine consolidated all the submissions from candidates, they were forwarded to a judging panel consisting of internationally renowned consulting firms including Boston Consulting Group and Bain & Company, China Banking Association Private Banking Committee and Chinese Academy of Social Sciences for evaluation and assessment to decide on the awardees of approximately 50 awards spanning across multiple categories.

Cases submitted to the judging panel by SW included IPO, financing, merger & acquisition, divorce and financial disputes, family trust, asset protection and inheritance arrangement. In particular, one high-profile case involved the highest amount of maintenance being awarded by courts in all common law jurisdictions at that time. In terms of market influence, our frequent hosting of seminars on asset protection, inheritance and active participation in the design of international accreditation courses were highly commended by the judging panel. SW holds licences for Hong Kong and New Zealand family trust companies, and at the same time, assists clients in establishing private trust companies and provides clients with legal solutions on asset protection. SW also manages the assets inside and outside the trust. With a solid legal platform in China and overseas, SW is capable of providing professional overseas legal services to high-net-worth individuals in a flexible way.

In public voting, SW was the only law firm shortlisted from Hong Kong and received more than 20,000 votes. We would like to take this opportunity to express our gratitude to our clients, private bankers, experts in family offices and financial institutions, and other professionals for their support. The credibility of the award is enhanced by incorporating the element of public voting and including professional theory and market recognition in the assessment criteria.

Please contact our Mr. Hank Lo for any enquiries or further information about this award.

The claimant initiated a litigation claim in Hong Kong in 2012 (Action 1). Subsequently, the action was stayed with consent and referred to arbitration according to the arbitration agreement at issue. In November 2013, the claimant obtained a favourable award from the arbitral tribunal in Shanghai.

The claimant obtained an order for enforcement of the arbitral award in Hong Kong in 2014. However, the Defendant did not take appropriate actions according to the order. Instead, he attempted to re-litigate the matter under Action 1.

The claimant restored Action 1 and a hearing was fixed in March 2016. Just five working days before the hearing, the Defendant applied to consolidate Action 1 with another separate High Court action. No evidence was filed by the Defendant in support of the consolidation and the Defendant also filed evidence in Action 1 after the designated time.

The Court rejected the consolidation and also decided for the claimant in Action 1. Specifically, the Court awarded indemnity costs to the claimant. The Court is of the view that although the Defendant did not directly challenge the arbitral award, the overall behaviours of the Defendant were “clearly an attempt to delay the enforcement” of the arbitral award. The Court considered that if the costs order was not on an indemnity basis, but rather a more lenient party-and-party basis, it would encourage people to employ similar strategies other than a direct challenge of the arbitral award to delay the enforcement.

This case reinforced the Court’s pro-arbitration stance. The Court’s position is that not only would a failed attempt to challenge or set aside an arbitral award result in an unfavourable costs order on an indemnity basis, but also where a party seeks to indirectly impede the enforcement of an arbitral award. Therefore, a party must carefully consider the binding effect of an arbitral award as recognized by the Court in Hong Kong when agreeing to an arbitration agreement.

On 20th September 2016, Mr. Zhu Jianhua and another representative from Shanghai Bureau of Justice, Mr. Yu Xuejie of the Liaison Office of the Central People’s Government in HKSAR, Mr. Zhou Tianping and Wang Xufeng of the Shanghai Bar Association visited our Hong Kong office.

SW partners, Mr. Willy Cheng, Mr. Eric Lui, Ms. Heidi Chui and Mr. Stephen Wong together with the senior partner of Allbright Law Offices, Mr. Lawrence Zhu exchanged ideas with the guests on various topics. It was brought up that the increase in the amount of work requiring cross border cooperation led to the further development of the strategic association between our firm and Allbright Law Offices. In light of the importance of interaction between lawyers from different jurisdictions, the guests gained insights on how our association worked, hoping that our successful implementation would be a blueprint of more such associations in the future. Our SW partners also shared the newly launched “ ‘One Belt, One Road’ Southeast Asia Legal Service Centre”, whereby our firm seeks to promote business cooperation between China and countries along Southeast Asia.

From left to right: Mr. Eric Lui, Mr. Willy Cheng, Mr. Zhou Tianping, Mr. Yu Xuejie, Mr. Zhu Jianhua, Mr. Lawrence Zhu, Ms. Heidi Chui, Mr. Stephen Wong, Representative from Shanghai Bureau of Justice

Please contact Mr. Eric Lui for any enquiries or further information about this event.