在香港注册的公司如果无法向债权人偿还债务，香港法院对其具有清盘管辖权。如果公司能证明该债务有实质性争议，那么清盘呈请将被驳回。不过，麻烦的是，法院要确定是优先适用合同仲裁协议还是法院专属法定管辖权。
在Re Jade Union Investment Ltd一案中，法院认为，清盘呈请有别于法院判定当事双方在某一行为中的权利和义务。法官认为，无论是双方在合同中载明仲裁条款或是仲裁程序的启动，都不能证明索赔款所涉争议是一个实质的争议; 债务人对此仍需承担举证责任。因此清盘程序不会自动停止。
详细信息请参阅附件。
Can a company be wound up in Hong Kong if the relevant contract contains an arbitration clause?
The Hong Kong court has jurisdiction to wind up any company registered in Hong Kong for those company which is not able to pay debts to creditors. The winding up petition will be dismissed if the company can establish that the debt is genuinely disputed on substantial grounds. However, the court is facing with a tension between upholding the primacy of the arbitration agreement and the court’s exclusive statutory jurisdiction to determine the winding up petitions.
In the case of Re Jade Union Investment Ltd, it was held that a winding up petition differs from an action between parties where the court is determining their respective rights and liabilities. The judge held that neither the existence of an arbitration clause in a contract between the parties nor the commencement of arbitration, demonstrated that there was a bona fide dispute in relation to the amount claimed; the debtor would still have the burden of proving this. Therefore the winding up proceedings would not be automatically stayed.
See attached file: ALCO20150031 Can a company be wound up in Hong Kong if the relevant contract contains an arbitration clause.pdf
