Covid-19: Order prescribing alternative arrangements for corporate insolvency meetings issued: Allen & Gledhill

30 April 2020

On 27 April 2020, the Covid-19 (Temporary Measures) (Alternative Arrangements for Meetings) (Corporate Insolvency) Order 2020 (“Order”) was gazetted. The Order, which comes into operation retrospectively on 27 March 2020, sets out the alternative arrangements to personal attendance in respect of creditors’ meetings and meetings in relation to the winding up of companies, limited liability partnerships (“LLPs”) and variable capital companies (“VCCs”).

The Order is part of a series of subsidiary legislation prescribing alternative arrangements to personal attendance for various categories of meetings issued on 27 April 2020. Other categories that were provided for include meetings in respect of bankruptcy proceedings, and meetings of management corporations and trade unions.

1. Background

The making of the Order by the Minister for Law follows on from the enactment of the Covid-19 (Temporary Measures) Act 2020 (“Act”) on 7 April 2020. Due to safe distancing measures imposed by the Government in response to the Covid-19 crisis, many businesses were unable to comply with the provisions on holding meetings as set out in a written law (such as the Companies Act) or legal instrument (such as a company’s constitution). To provide legal certainty on the holding of meetings amid the control measures, section 27 (Part 4) of the Act allows the Minister for Law to prescribe alternative arrangements where:

personal attendance at a meeting or class of meetings is provided for in any written law or legal instrument; and
the Minister for Law considers that it would be inexpedient or impracticable for the meeting or class of meetings to be convened, held or conducted in the manner provided for in the written law or legal instrument, in view of a control measure.

A relevant meeting or class of meetings held on or after 27 March 2020 that complies with the alternative arrangements prescribed will be deemed to satisfy any requirements for the convening, holding, conduct or deferral of such meetings under the relevant written law or legal instrument.

2. Applicable classes of corporate insolvency meetings

Specifically, the Order sets out the alternative arrangements to personal attendance in respect of the following classes of meetings:

(a) in relation to companies:

(i) meetings of creditors of a company placed under the judicial management of a judicial manager;

(ii) meetings of creditors of a company in respect of a creditors’ voluntary winding up or members’ voluntary winding up of the company;

(iii) meetings of creditors and contributories of a company in respect of a winding up of the company by the High Court;

(iv) meetings of committees of inspection in respect of a winding up of a company by the High Court;

(v) general meetings of a company, in the case of a members’ voluntary winding up, under section 307(1) (annual meeting of members and creditors) or section 308(1) (final meeting and dissolution) of the Companies Act;

(vi) general meetings of a company and its creditors, in the case of a creditors’ voluntary winding up, under section 307(1) or 308(1) of the Companies Act;

(b) in relation to LLPs:

(i) meetings of creditors of an LLP in respect of a creditors’ voluntary winding up or partners’ voluntary winding up of the LLP;

(ii) meetings of creditors and partners of an LLP in respect of a winding up of the LLP by the High Court;

(iii) meetings of a committee of inspection in respect of a winding up of an LLP by the High Court;

(iv) meetings of the partners of an LLP and general meetings of an LLP, in the case of a partners’ voluntary winding up, under paragraph 54(1) (annual meeting of partners and creditors) or paragraph 55(1) (final meeting and dissolution) of the Fifth Schedule to the Limited Liability Partnerships Act (“LLP Act”);

(v) meetings of the partners and creditors of an LLP and meetings of an LLP and its creditors, in the case of a creditors’ voluntary winding up, under paragraph 54(1) or 55(1) of the Fifth Schedule to the LLP Act;

(i) meetings of creditors of a VCC, or a sub-fund, in respect of a voluntary winding up of the VCC or sub-fund;

(ii) meetings of creditors and contributories of a VCC, or a sub-fund, in respect of a winding up of the VCC or sub-fund by the High Court;

(iii) meetings of a committee of inspection in respect of a winding up of a VCC or sub-fund by the High Court;

(iv) general meetings of a VCC, in the case of a members’ voluntary winding up, under section 307(1) or 308(1) of the Companies Act as applied by section 33(2) or 130(1) of the Variable Capital Companies Act 2018 (“VCC Act”);

(v) general meetings of a VCC and its creditors, in the case of a creditors’ voluntary winding up, under section 307(1) or 308(1) of the Companies Act as applied by section 33(2) or 130(1) of the VCC Act.

Excluded meetings

For the avoidance of doubt, the Order does not apply to any meeting held pursuant to an order or a direction of, or held in a manner determined by, the High Court under:

section 210(1) of the Companies Act (meeting of creditors, members of the company, holders of units of shares of the company, or a class of such persons, where a compromise or an arrangement is proposed);
section 227R(3)(c) of the Companies Act (meeting of creditors or members when judicial management order in force to protect interests of creditors and members);
section 257(3) of the Companies Act (meeting directed to be held where winding up application made on ground of default in holding statutory meeting);
section 294(5) of the Companies Act (meeting to fill vacancy in office of liquidator in members’ voluntary winding up); or
section 325(1) of the Companies Act (meeting directed to be held to ascertain wishes of creditors or contributories).

This includes any of the above provisions applied by the VCC Act.

3. Applicable period

Under the Order, the alternative arrangements apply for the period starting on 27 March 2020 and ending on 30 September 2020.

4. Alternative arrangements to personal attendance

The alternative arrangements for the convening, holding, conducting or deferral of a meeting to which the Order applies are set out in the Schedule to the Order.

The alternative arrangements set out in the second column apply in respect of the provisions of the written law relating to such a meeting set out in the first column:

No.	First column Provision of written law	Second column Alternative arrangement
1	Provision for convening, holding, conducting or deferral of a meeting	A meeting may be convened, held or conducted, whether wholly or partly, by electronic communication, video conferencing, tele-conferencing or other electronic means (“electronic means”). A meeting may be deferred to a date no later than 30 September 2020.
2	Provision for attendance at a meeting	A liquidator (in relation to a meeting in respect of a winding up of a company, LLP or VCC) or judicial manager (in relation to a meeting in respect of a judicial management of a company) (“convenor”) may provide that a creditor, contributory, member or partner (as the case may be) may only attend a meeting by observing and listening to the proceedings of the meeting by electronic means, if access to both an audio broadcast and audio‑visual broadcast is provided to the creditor, contributory, member or partner, as the case may be.
3	Provision for right of a contributory to be heard at a meeting or to have a representation considered at a meeting	A contributory may be heard at a meeting by being required to send, before the meeting, to the convenor, by post or electronic mail, the matters which the contributory wishes to raise at the meeting, and each such matter, if substantial and relevant and sent within a reasonable time before the meeting, is to be responded to at or before the meeting by electronic means. A representation may be considered at a meeting by electronic means.
4	Provision for quorum at a meeting	A quorum may be formed by creditors, contributories, members or partners (as the case may be) personally or electronically present. A creditor, contributory, member or partner is electronically present at a meeting if the creditor, contributory, member or partner (as the case may be): (a) attends the meeting in the manner provided in item 2; (b) is verified and acknowledged by the convenor as attending the meeting in the manner provided in item 2.
5	Provision for a creditor, contributory, member or partner to vote at a meeting	A convenor may require a creditor, contributory, member or partner to appoint the convenor as his or her proxy to vote at the meeting by depositing with the convenor an instrument of appointment by post, or by electronic mail to an electronic mail address stated in the notice of the meeting. A creditor, contributory, member or partner may not vote at the meeting otherwise than by way of appointing the convenor as his or her proxy. Where a proxy is delivered by a creditor, contributory, member or partner to the convenor before 27 April 2020: (a) the convenor may treat the instrument of appointment appointing a person other than the convenor as the creditor’s, contributory’s, member’s or partner’s (as the case may be) proxy to vote at the meeting as an instrument of appointment appointing the convenor as the creditor’s, contributory’s, member’s or partner’s (as the case may be) proxy to vote at the meeting, if: (i) the creditor, contributory, member or partner (as the case may be) indicated how he or she wished to vote on each resolution; and (ii) the creditor, contributory, member or partner (as the case may be) has been given an opportunity to withdraw the appointment and has not withdrawn the appointment; and (b) the convenor may treat the instrument of appointment appointing a person other than the convenor as the creditor’s, contributory’s, member’s or partner’s (as the case may be) proxy to vote at an adjourned or postponed meeting as an instrument of appointment appointing the convenor as the creditor’s, contributory’s, member’s or partner’s (as the case may be) proxy to vote at the meeting, if: (i) the resolutions proposed at the adjourned or postponed meeting are the same as the resolutions to be proposed at the meeting; (ii) the creditor, contributory, member or partner (as the case may be) indicated how he or she wished to vote on each such resolution; and (iii) the creditor, contributory, member or partner (as the case may be) has been given an opportunity to withdraw the appointment and has not withdrawn the appointment.
6	Provision for an account, or a communication in writing, to be laid before a meeting	An account or a communication in writing required to be laid before a meeting may be so laid by being sent by the convenor in the manner provided in item 7.
7	Provision for giving of notice of a meeting other than a provision requiring a notice of meeting to be advertised or published in a newspaper	A notice of a meeting: (a) must be sent by the convenor by electronic mail to each creditor, contributory, member or partner (as the case may be) who has notified the convenor or the company, limited liability partnership or VCC (as the case may be) of his or her electronic mail address; (b) must be published on the website of the company, limited liability partnership or VCC (as the case may be) or on the website of the convenor; (c) must describe the means by which the meeting can be electronically accessed (including the online location, if the meeting is held at an online location); (d) must set out how a creditor, contributory, member or partner (as the case may be) may vote at the meeting; and (e) may be accompanied by any other documents relevant to the meeting.

Reference materials

The following reference materials are available on the Singapore Statutes Online website sso.agc.gov.sg:

Further information

Allen & Gledhill has a Covid-19 Resource Centre on our website www.allenandgledhill.com that contains knowhow and materials on legal and regulatory aspects of the Covid-19 crisis.

In addition, we have a cross-disciplinary Covid-19 Legal Task Force consisting of Partners across various practice areas to provide rapid assistance. Should you have any queries, please do not hesitate to get in touch with us at covid19taskforce@allenandgledhill.com.

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