CORPORATE INSOLVENCY AND RESSTRUCTURING ACT, 2020 (ACT1015) SS 125-171

125. Avoidance of assignment and floating charges

(1) A conveyance or an assignment by a company of a property of the company to the trustees to the benefit of the creditors of the company is void.

(2) A property covered by subsection (1) or a floating charge invalidated under the Companies Act shall be dealt with as part of the general assets of the company.

126. Call on contributories

(1) The liquidator may

(a) make calls on all or any of the contributories for the time being settled on the list of contributories to the extent of the liability

(i) for the payment of moneys which the liquidator considers necessary to satisfy the debts and liabilities of the company, the cost, charges and expenses of the winding-up, and

(ii) for the adjustment of the rights of the contributories among themselves; and

(2) make an order for the payment of the calls so made after the making of a winding-up order, and before or after the liquidator has ascertained the sufficiency of the assets of the company.

(3) In making a call, the liquidator may take into consideration the probability that some of the contributories may partly or wholly fail to pay the call.

(4) The liquidator may order a contributory, purchaser or any other person from whom money is due to the company to pay the amount due into the Liquidation Fund specified by the liquidator instead of making the payment to the liquidator, and the order may be enforced in the same manner as if the order had directed the payment to the liquidator.

(5) An order or call made by the liquidator under this section is conclusive evidence subject to the right of appeal, that the money that appears to be due or ordered to be paid is due.

(6) A call made by the liquidator shall have the same effect as an order of the Court, for the purpose of recovering a sum of money due.

127. Sums to be credited to Official Account of the company

(1) The liquidator shall open an Official Account of the company, within the Liquidation Fund for each company in respect of which the liquidator is a liquidator.

(2) The liquidator shall credit the account with the

(a) moneys received by the liquidator in respect of the company by virtue of this section;

(b) payment made to the liquidator to increase the assets available for dividends; and

(c) repayments regarding excess dividends made under subsection (3) of section 130.

(3) Where, on the application by the company or by a creditor, it appears to the Court before the termination of the liquidation that, assets have been lost to the estate by reason of a default by the liquidator, the Court may order that

(a) the Official Account of the company be credited with a sum of money that the Court considers just, and

(b) an equivalent sum of money be debited to the Fees Account.

Distribution of Assets
128. Disclaimer

(1) The liquidator may, within one year after the commencement of the winding-up, by notice published in the Companies Bulletin, disclaim the property of the company vested in the liquidator if the liquidator is of the opinion that the property will not benefit the creditors.

(2) Where a person interested in the property has by application in writing required the liquidator to elect whether the liquidator disclaims the property or not and the liquidator fails to disclaim within one month after the application or a longer period that the Court may allow, subsection (1) shall not apply.

(3) The Court may, on the application of a person interested, give the relief and make any other provision that the Court considers just in consequence of the disclaimer under subsection (1).

(4) The disclaimer shall operate to determine, as from the date of the disclaimer, the rights, interests and liabilities of the company, in or in respect of the property disclaimed.

(5) The disclaimer shall not affect the rights or liabilities of any other person except where necessary in order to release the company and the property of the company from liability.

129. Fees and outgoings

(1) The liquidator may withdraw sums of money from the assets of the company sufficient to satisfy fees of the prescribed amount charged in respect of the liquidation.

(2) When the fees become due to the liquidator in respect of a company, the liquidator shall cause the fees to be paid by a transfer of the necessary sums of money from the Official Account of the company to the Fees Account which shall be opened for the purposes of paying fees.

(3) When the rent, rates, charges or any other outgoings fail to be met by the liquidator in respect of the company, the liquidator shall cause the rent, rates, charges and other outgoings to be paid out of the Official Account of the company.

130. Dividends to creditors

(1) Subject to section 129, the liquidator shall from time to time, and as early as practicable, declare and distribute dividends to creditors.

(2) The liquidator shall ensure that

(a) provision is made for the payment in full of the Class A debts before a dividend is declared in respect of Class B debts and so on throughout the classes;

(b) the debts within one class are ranked simultaneously and equally;

(c) payment is made only in respect of debts which rank for dividends and shall not exceed the values of the dividends;

(d) where a security held by a creditor has not yet been reduced or surrendered, the value of the debt against which the security is held is to be treated as reduced by the value of the security; and

(e) interest is not allowed regarding a period after the commencement of the winding-up.

(3) Where a dividend is paid under subsection (2) in respect of a debt which is subsequently snick out and reduced in value by an amendment of the admitted proof, the creditor shall repay to the liquidator the difference between the amount of the dividend and the amount which should have been paid in the light of the amendment.

(4) Where a dividend is paid in respect of a debt and the debt is subsequently increased in value by an amendment of the admitted proof, the liquidator shall pay to the creditor the difference between the amount of the dividend and the amount which, in the light of the amendment, should have been paid so far as may be practicable, without a disturbance to dividends already declared.

(5) Where a creditor has omitted to lodge a proof of debt during the period permitted by this Act, or has omitted a provable debt kom the proof, the creditor may apply to the Court for relief during the liquidation.

(6) Where the Court is of the opinion that the omission is excusable, the Court shall make an order requiring the liquidator to pay to the creditor the sum of money that would have been payable to the creditor under this section if the omission had not occurred, so far as may be practicable without a disturbance to dividends already declared.

(7) Where at the end of a period of one year after the declaration of a dividend stated by the liquidator to be the final dividend, payments under that or a previous dividend remains outstanding because the creditors in question cannot be found, the liquidator shall

(a) cancel the payment, and

(b) declare a further dividend in favour of the remainder of the creditors unless payment in full has been achieved.

(8) In the case of a final dividend, or a further dividend declared under subsection (7), payment of less than four hundred currency points shall not be required to be made.

(9) Payment under this section shall be made from the Official Account of the company.

(10) Property which has not been converted into money may be transferred to a creditor in place of the equivalent amount of money if the creditor consents.

131. Distribution to members

(1) Subject to sections 80 to 149, the assets of a company shall be applied in satisfaction of the liabilities of the company simultaneously and equally on the official winding-up of the company.

(2) Subject to the application under subsection (1), the assets of a company shall be distributed among the members according to the rights and interests of the members in the company, unless the constitution of the company otherwise provides.

132. Disposal of unclaimed assets

Where a balance remains in the Official Account of the company after provision is made for the payment and transfer of assets under sections 129 to 131, the Court may order that the balance be transferred to the Fees Account and give directions for the disposal of an asset not converted into money.

133. Payment out of Official Account of Company and Fees Account

(1) A person is not entitled to a payment regarding any action taken by the liquidator in relation to a company except out of a balance in the Official Account of that company, or out of assets otherwise vested in the liquidator in respect of the company under this Act.

(2) Costs awarded against the liquidator in any proceedings shall be paid out of the Fees Account.

(3) During the continuance of liquidation, a person shall not be required to

(a) supply goods,

(b) render services, or

(c) otherwise perform an obligation

under a contract entered into with the company before the commencement of the winding-up, unless that person has received an assurance from the liquidator that the assets of the company are sufficient to enable the goods or services to be paid for, or the discharge of the obligations otherwise recompensed, in accordance with the terms of the contract.

(4) Despite Subsection (1), if an assurance given under subsection (3) proves incorrect, the person to whom the assurance was given is entitled to be reimbursed out of the Fees Account.

Termination of Proceedings
134. Order to terminate proceedings

(1) After the completion of the winding-up of a company and the drawing up of the financial statements which have been approved by an auditor appointed by the creditors, the liquidator shall apply to the Court for an order to terminate the liquidation proceedings.

(2) The liquidator shall give notice of the application to each creditor with an admitted proof together with a summary of the financial statements.

(3) The liquidator shall send a copy of the financial statements to the Registrar for registration and shall attach to the financial statements a statement that shows

(a) that an application has been made for an order under section 117, or

(b) that grounds do not exist for an application.

(4) The Court shall grant the application if satisfied with the application by the liquidator.

(5) The Registrar of the Court shall send a copy of the order made by the Court to the Registrar for registration.

135. Dissolution of company

When satisfied that the official winding-up of a company is complete, the Registrar shall strike the name of the company off the register and notify that fact in the Companies Bulletin and in a daily newspaper of national circulation, and the company is, for the purposes of this Act dissolved as at the date of the publication of the notification in the Companies Bulletin and in a daily newspaper of national circulation.

136. Disposal of books and papers of company on dissolution of the company

(1) The liquidator shall preserve the books, records, returns and other documents of the company and of the liquidator for a period of seven years after the dissolution of the company.

(2) The liquidator may dispose of all books, records, returns and other documents of the company after the expiration of the seven year period unless the Registrar otherwise directs, in which event the liquidator shall not dispose of the books, records, returns and documents until the Registrar has consented in writing to the disposal.

137. Restoration of company

(1) The Court may, where a company is dissolved, make an order within five years after the date of the dissolution, on the terms determined by the Court, to declare the dissolution as void and to order the name of the company to be restored to the register on application made by

(a) the Registrar,

(b) a former officer, member or creditor of the company, or rd a person claiming through or under any of the persons named in paragraph (1) for the purpose.

(2) The Registrar shall, on the order of the Court, restore the name of the company to the register and the company shall be deemed to have continued in existence as if the company had not been dissolved.

(3) An official copy of the order made under subsection (1) shall be delivered to the Registrar for registration and the Registrar shall publish the copy in the Companies Bulletin.

(4) For the purposes of a period of limitation, time does not run during the period between the dissolution and the restoration.

(5) The Court may give directions and make provisions as the Court considers just for placing the company and any other person in the same position as nearly as possible as if the name of the company had never been struck off.

Supplementary Provisions on Official Liquidation
138. Stay of winding-up proceedings

(1) The Court may, on an application by the liquidator, creditor, member or contributory, make an order to stay proceedings regarding the winding-up, where the Court is satisfied on proof by the applicant that proceedings ought to be stayed.

(2) The Court may make the order to stay the proceedings altogether or for a limited period and on the terms and conditions determined by the Court.

(3) The Court may require a person to furnish the Court with a report regarding the facts or matters which are in the opinion of the Court relevant to the application before making the order.

(4) The Court may order the company or any other person to forward a copy of an order made by the Court to the Registrar.

(5) The Registrar shall record the order in the books of the Registrar in respect of the company and in the Companies Bulletin and in a daily newspaper of national circulation after the receipt of the order.

139. Arrest of person who impedes winding-up proceedings

(1) Where an order for winding-up of a company is made and before the completion of the liquidation, it appears to the Court that the proceedings of the winding-up are or may be impeded because a member or contributory, an officer of the company or any other person whom the Court considers likely to help in the successful completion of the liquidation or whose conduct is impeding or may impede the winding-up

(a) has absconded or is likely to do so;

(b) has removed, concealed, destroyed or damaged property of the company or is likely to do so; or

(c) is likely to fail to attend as required before the Court, the liquidator or a meeting of creditors,

the Court may issue a warrant for the arrest of that person or the seizure of the property or for both the arrest and the seizure.

(2) Where a warrant of arrest is issued, the provisions of the Criminal and Other Offences (Procedure) Act, 1960 (Act 30) relating to arrest apply in the manner that the provisions apply to arrest for a criminal offence, and a person arrested under that warrant shall be conveyed from custody to a hearing by the Court for the necessary orders to be made for the purpose of the winding-up proceedings.

(3) Property seized under subsection (1) shall be dealt with in a manner that the Court may direct but a property which does not belong to the person and is not likely to be subject to the powers of the liquidator shall revert to the owner of the property as soon as practicable.

140. Offences

A person, other than the official liquidator, who contravenes a duty imposed on that person under this Act, commits an offence and is liable on summary conviction to a fine of not less than three hundred penalty units and not more than seven hundred and fifty penalty units or to a term of imprisonment of not less than eighteen months and not more than three years or to both.

141. Prosecution of fraudulent of delinquent persons

(1) Where it appears to the Court in the course of the official winding-up, that a past or present officer or member of the company has committed an offence in relation to the company for which that officer or member of the company is criminally liable, the Court may, on the motion of the Court or on an application by a person interested in the official winding-up, direct the liquidator to refer the matter to the Attorney-General.

(2) Where it appears to the liquidator in the course of an official winding-up that a past or present officer or member of the company has committed an offence in respect of the company for which that officer or member is criminally liable, the liquidator shall immediately

(a) report the matter to the Attorney-General,

(b) furnish the Attorney-General with the information, and

(c) give the Attorney-General access to the facilities for inspection and obtaining copies of documents, in the possession or under the control of the liquidator that relate to the matter in question that the Attorney-General may require.

(3) Where a report is made under subsections (1) and (2) to the Attorney-General, the Attorney-General may give directives for an enquiry to be made.

(4) The Attorney-General shall investigate the matter and may, if it is expedient, apply to the Court for an order to confer on the Attorney-General or a person designated by the Attorney-General for that purpose with respect to the company concerned, the power provided by the Companies Act, 2019 (Act 992) to investigate the affairs of the company.

(5) Where it appears to the Court in the course of an official winding-up that

(a) a past or present officer or a member of the company has committed an offence as specified in subsection (2), and

(b) a report has not been made with respect to the offence by the liquidator to the Attorney-General,

(6) the Court may direct the liquidator to make the report on the application of the person interested in the official winding-up, or on the motion of the Court.

(7) Where a report is made under this section the report shall have effect as though the report has been made in accordance with sub- section (2).

(8) Where a matter 1s reported or referred to the Attorney-General under this section and the Attorney-General considers that the case is one for which prosecution ought to be instituted, the Attorney- General shall institute the prosecution, and the liquidator and each officer and agent of the company past and present, other than the defendant in the proceedings, shall give the Attorney-General and the liquidator the assistance in connection with the prosecution which that officer or agent is reasonably able to give.

(9) For the purpose of subsection (7), “agent” in relation to a company, includes a banker or lawyer of the company and a person employed by the company as auditor, whether or not that person is an officer of the company.

(10) Where a person fails or neglects to give assistance in the manner required by subsection (7), the Court may order that person to comply with the requirements of that subsection on the application of the Attorney-General.

(11) Without limiting subsection (9), the Court may order that the costs of the application shall be borne by the liquidator personally unless it is established that the failure or neglect to comply was due to the fact that the liquidator did not have sufficient assets of the company at the time to enable the liquidator to do so.

142. Inspection of records of company

(1) The Court may make an order that the Court considers just after making a winding-up order for the creditors, members or contributories to inspect all books, records, returns and other relevant documents of the company and the inspection shall be carried out accordingly.

(2) Subsection (1) does not exclude or restrict the statutory rights of a government department or a person acting under the authority of a Government department.

143. Notification of liquidation

(1) Where a company is being wound up, an invoice, order or a business letter or any other document issued by or on behalf of the company on which the name of the company appears, shall contain a statement that the company is being wound up and shall have the phrase “in official liquidation or” in liquidation” as is applicable, affixed after the name of the company.

(2) An officer of the company or a liquidator, who fails to comply with subsection (1) commits an offence and is liable on summary conviction to a fine of not less than two hundred penalty units and not more than five hundred penalty units or to a term of imprisonment of not less than one year and not more than two years or to both.

144. Exemption from stamp duty

(1) In the official winding-up of a company, the company is exempt from stamp duties chargeable under an enactment in respect of,

(a) an assurance which relates solely to

(i) freehold or leasehold property,

(ii) a mortgage, charge or any other encumbrance on a property, or

(iii) an estate, a right or an interest in, property which forms part of the assets of the company and which, after the execution of the assurance, at law or in equity, is or remains part of the assets of the company, and

(b) a power of attorney, a proxy paper, a writ, an order, a certificate, as affidavit, a bond or any other instrument or writing that relates solely to the property of a company which is being wound up, or to the proceedings under that winding-up.

(2) For the purpose of subsection (1), “assurance” includes a deal of conveyance, an assignment and a deed of surrender.

Official Liquidation of Other Bodies Corporate
145. Winding-up of other bodies corporate

Subject to this section and to sections 146 to 149, a body corporate which,

(a) has or had an office or place of business in Ghana, or

(b) has assets situated in Ghana may be wound up by way of official liquidation under this Act and sections 81 to 144 shall apply to the body corporate as if that body corporate were a company.

146. Exclusion of certain bodies corporate

Despite section 145, a body corporate shall not be wound up under this Act if the body corporate is

(a) a firm incorporated under the Incorporated Private Partnerships Act, 1962 (Act 152), or

(b) a body corporate formed by or under an enactment which makes specific provision for the winding-up of bodies corporate formed by or under that enactment.

147. Application to foreign bodies corporate

(1) A body corporate incorporated outside the Republic may be wound up under this Act although the body corporate has been dissolved or otherwise ceased to exist under or by virtue of the laws of the country under which that body corporate was incorporated.

(2) Where an order is made for the official winding-up of a body corporate incorporated outside the Republic, the Court may, in the winding- up order or on a subsequent application by the liquidator, direct that

(a) the branch of that body corporate in Ghana shall be treated as a separate body corporate,

(b) the assets and liabilities situate in Ghana shall be treated as the assets and liabilities of that body corporate for the purposes of the winding-up, and

(c) the transaction by or with that branch shall be deemed to be validly done although that transaction occurred after the date when the body corporate was dissolved or otherwise ceased to exist under or by virtue of the laws of the country under which that body corporate was incorporated.

148. Winding-up by the Court

A body corporate shall not be wound up except on a petition to the Court in accordance with section 84.

149. Grounds for winding-up of foreign bodies corporate

(1) In the application of this section to a foreign body corporate, subsection (2) shall be substituted for subsection (2) of section 84.

(2) The Court may, on a petition, order the official winding-up of a body corporate if,

(a) the body corporate is dissolved, has ceased to carry on business, or is carrying on business only for the purpose of winding-up the affairs of the company;

(b) the body corporate is unable to pay the debts of the company;

(c) the Court is of the opinion that

(i) the business or objects of the body corporate is or are unlawful,

(ii) the body corporate is being operated for an illegal purpose, or

(iii) the body corporate is carrying on a business or operation not authorised by the constitution of that body corporate; or

(d) the Court is of the opinion that it is just and equitable that the body corporate winds up.

(3) In the determination of whether the body corporate is unable to pay the debts of that body corporate, subsection (3) of section 83 applies.

Gross-Border Insolvency
150. Cross-6order insolvency proceedings

The purpose of sections 151 and 152 is to provide effective mechanisms for cross-border insolvency proceedings to

(a) promote co-operation between a Court and other competent authorities of Ghana and foreign states involved in cases of cross-border insolvency;

(b) provide legal certainty for trade and investment;

(c) provide for the fair and efficient administration of cross- border insolvencies that protect the interests of creditors and debtors and other interested persons;

(d) provide protection over the value of assets of a debtor; and

(e) protect and preserve investment and employment.

151. Scope of application

(1) Sections 150 and 152 apply where assistance is required

(a) in Ghana by a foreign country or a foreign representative in connection with a foreign proceeding; or

(b) by a Ghanaian Court of a Ghanaian representative in a foreign state in connection with an insolvency proceeding under this Act;

(c) in respect of a foreign insolvency proceeding and a proceeding under this Act, relating to the same company which is taking place concurrently; or

(d) by a creditor or other interested person of a foreign state in commencing proceedings or requesting the participation of proceedings commenced in Ghana in connection with the insolvency proceedings of a company under the Act.

(2) Sections 150 and 151 do not apply to a bank or financial institution within the meaning of the Banks and Specialised Deposit- Taking Institutions Act, 2016 (Act 930).

151. Rules and procedure

(1) Subject to the Rules of Court the matters set out in the Schedule shall apply to cases of cross-border insolvency proceedings.

(2) For purposes of cross-border insolvency proceedings, the Rules of Court Committee may make rules in relation to

(a) the practice and procedure of the Court for cross-border insolvency proceedings;

(b) the manner in which an application in respect of a cross- border insolvency proceeding shall be made to Court; and

(c) generally giving effect to the provisions of the Schedule.

Regulation of Insolvency Services
152. Establishment of Insolvency Services Division

(1) The Registrar shall, in pursuance of the Companies Act, 2019 (Act 992), establish a division of the Office of the Registrar of Companies known as the Insolvency Services Division.

(2) The Registrar shall assign to the Insolvency Services Division, staff of the Office of the Registrar of Companies that are necessary for the proper and effective performance of the functions of the Division.

(3) The Insolvency Services Division shall perform the following functions:

(a) regulate insolvency practice under the Companies Act, 2019 (Act 992), this Act and any other relevant enactment;

(b) keep under review the law and practice that relates to the insolvency of companies and other bodies corporate in the country and make recommendations to the Registrar on any changes considered necessary;

(c) oversee the administration, restructuring and insolvency proceedings of companies and other bodies corporate in the country;

(d) receive reports horn liquidators and insolvency practitioners on the administration of insolvencies;

(e) receive reports from agents for debenture holders, trustees for security holders and auditors for companies in distress or insolvent situations to enable corrective measures to be taken;

(f) carry out research, commission studies, disseminate information and provide public education in the area of insolvency administration;

(g) establish and maintain communication and liaison with international agencies, including the International Commission on Trade Law, in the area of international insolvencies and insolvency administration as may be necessary for the efficient performance of the functions of the Division;

(h) advise the Minister through the Registrar generally on any matter relating to the law and practice of insolvency and insolvency administration; and

(i) perform any other functions required for the attainment of the objects of the Division;

(4) The Registrar is responsible for the day-to-day administration of the affairs of the Insolvency Services Division.

(5) The Registrar may delegate a function required to be performed by the Registrar for the purpose of the Insolvency Services Division but the Registrar shall not be relieved from the ultimate responsibility for the performance of the delegated function.

153. Meaning of insolvency practitioner

(1) Insolvency practitioner means

(a) a receiver under the Companies Act, 2019 (Act 992);

(b) a manager under the Companies Act, 2019 (Act 992);

(c) an administrator under this Act;

(d) a restructuring officer under this Act; or

(e) a trustee in bankruptcy under the Insolvency Act, 2006 (Act 708).

(2) Section 154 to 163 do not apply to the official liquidator.

154. Qualifications of insolvency practitioner

(1) A person is qualified to be an insolvency practitioner if

(a) that person is a Chartered Accountant, a lawyer or a banker and that person is in good standing with a recognised professional association; and

(b) that person is certified as a restructuring and insolvency practitioner; and

(c) there is in force at the relevant time, security or professional indemnity for the proper performance of the duties of that person in accordance with the prescribed requirement.

155. Qualifications of insolvency practitioner

(1) A person is qualified as an insolvency practitioner if

(a) that person is a Chartered Accountant, a lawyer or a banker and that person is in good standing with a recognised professional association; and

(b) that person is certified as a restructuring and insolvency practitioner; and

(c) there is in force at the relevant time, security or professional indemnity for the proper performance of the duties of that person in accordance with the prescribed requirement.

(2) A person is not qualified as an insolvency practitioner if the person

(a) is a minor;

(b) is a body corporate;

(c) has been declared an undischarged bankrupt;

(d) is declared by a court of competent jurisdiction to be of unsound mind;

(e) is the subject of a prohibition order under section 159; is disqualified under the Companies Act, 2019 (Act 992) for fraudulent trading or is disqualified from holding an office under the Companies Act, 2019 (Act 992);

(f) has been convicted in the preceding five years of

(i) an offence under this Act; or

(ii) a crime involving dishonesty or moral turpitude;

(g) is disqualified from acting as a liquidator, administrator,

(h) receiver, trustee or supervisor under this Act or any other enactment; or

(i) is subject to disciplinary proceedings or punishment under any law.

(3) A person who is a professional can only act as an insolvency practitioner if that person takes out an insurance policy for indemnity for any act or omission on the part of that person as an insolvency practitioner.

(4) For the purpose of paragraph (a) of subsection (1), “a recognised professional association” means the Institute of Chartered Accountants, the Ghana Bar Association or the Chartered Institute of Bankers.

156. Acting as an insolvency practitioner without qualification

(1) A person who acts or purports to act as an insolvency practitioner contrary to section 155, commits an offence and is liable on summary conviction to a fine of not less than five hundred penalty units and not more than one thousand penalty units or to a term of imprisonment of not less than two years and not more than five years or to both.

(2) An act carried out by a person who is not qualified to act as an insolvency practitioner while acting as an insolvency practitioner shall be valid unless the Court orders otherwise.

157. Persons disqualified from acting as administrators

Despite section 155,

(a) a creditor of the company in liquidation or under administration or an associated company, or

(b) a person who has, within the previous two years been a shareholder, director, auditor or receiver of the company in liquidation or under liquidation or of any associated company, is not eligible to act as an administrator or a restructuring officer.

158. Conduct and performance of insolvency practitioners

(1) The Registrar shall keep under review the conduct and performance of insolvency practitioners.

(2) The Registrar may require

(a) an insolvency practitioner, or

(b) a person who is or has been an auditor of a company in which the insolvency practitioner has held office to furnish the Registrar with any document or information concerning an insolvency practitioner.

(3) The Registrar may receive a representation from a person on the conduct and performance of an insolvency practitioner and shall within seven days after the receipt of the representation, disclose the substance of that representation to the insolvency practitioner and seek comments of the insolvency practitioner on the representation.

(4) The representation made to the Registrar and any communication of the terms of that representation made in confidence shall be protected by absolute privilege.

(5) Where the Registrar has a reasonable ground to suspect that

(a) an insolvency practitioner has failed to comply with this Act in a manner that has or may materially affect

(i) creditors,

(ii) contributories, or

(iii) persons who deal in good faith with a debtor, or

(b) the insolvency practitioner has been suspended or removed from the practice of

(i) accountancy,

(ii) law, or

(iii) any other prescribed profession by a professional body in Ghana or by a comparable body outside Ghana,

the Registrar may inquire into the conduct and performance of the insolvency practitioner.

(6) For the purpose of an inquiry under subsection (5), the Registrar may, by notice in writing, require a director or shareholder of a company or any other person including the secretary of any relevant professional body to deliver to the Registrar the books, records, returns and other relevant documents of the company in the possession of that person or under the control of the person that are relevant to the subject matter of the inquiry as the Registrar so requires.

(7) The Registrar may, for the purpose of an inquiry under subsection (5), by notice in writing, require

(a) a director or former director of a company,

(b) a shareholder of a company,

(c) a person who was involved in the promotion or formation of a company,

(d) a person who is, or has been, an employee of a company,

(e) a receiver, liquidator, administrator, accountant, auditor, bank officer or other person having knowledge of the affairs of a company, or

(f) a person who is acting or who has at any time acted as legal counsel for a company,

to do any of the things specified in subsection (8).

(8) A person referred to in subsection (7) may be required to

(a) attend on the Registrar at a reasonable time and place that may be specified in a request;

(b) provide the Registrar with information about the business, accounts or affairs of the company as the Registrar requests; or

(c) be examined on oath by the Registrar or by a law practitioner acting on behalf of the Registrar on any matter relating to the business, accounts or affairs of the company.

(9) The Registrar may pay to a person referred to in paragraphs (c) and of subsection (7) who is not an employee of the company, reasonable navel and other expenses in compliance with a requirement of the Registrar under subsection (8).

(10) An action or proceeding, including disciplinary proceedings by any professional tribunal, body or authority having jurisdiction in respect of professional conduct, shall not lie against a person arising from disclosure in good faith of information to the Registrar in accordance with this section.

159. Application to Court by Registrar

(1) Where the Registrar, as a result of the outcome of an inquiry under section 158 considers that there is reasonable ground to believe that the insolvency practitioner is unfit to act by reason of

(a) failure to comply with this Act,

(b) misconduct or incompetence on the part of the insolvency practitioner, or

(c) any other sufficient cause

the Registrar may apply to the Court for a prohibition order under section 71 or 160.

(2) Where the Court makes a prohibition order, that fact shall be entered in the file kept under subsection (6) of section 71 and in the register of prohibited persons kept in accordance with subsection (4) of section 161.

160. Prohibition order against an insolvency practitioner

(1) Where it is proved to the satisfaction of a Court that a person is unfit to act as an insolvency practitioner by reason of a failure to comply or for any other sufficient cause, the Court shall make a prohibition order against the person for a period of not more than five years.

(2) Where there is evidence that on two or more occasions within the preceding five years, while a person was acting as insolvency practitioner

(a) a Court made an order to that person to comply; or

(b) an application for an order to the person to comply has been made and that in each case that person has failed to comply after the application has been made and before the hearing, in the absence of any justifiable reasons to the contrary,

this constitutes evidence of failure to comply within the meaning of this section.

(3) A person in respect of whom a prohibition order is made shall, with immediate effect, cease to act as an insolvency practitioner.

(4) Proceedings including the decision of the Court that relate to an application for an order shall be served on the Registrar and the Registrar of the prescribed professional body.

(5) The Registrar shall keep a copy of the proceedings including the decision of the Court on a public file indexed by reference to the name of the insolvency practitioner concerned.

(6) In this section “failure to comply” means a failure of an insolvency practitioner to comply with a duty under

(a) the appointing documents;

(b) this Act or any other enactment; or

(c) any order or direction of the Court other than an order to comply made under this section.

161. Register of insolvency practitioners

(1) The Registrar shall keep and maintain a register of insolvency practitioners in which the Registrar shall enter the name, address, qualification and any other information that the Registrar may reasonably require of each insolvency practitioner.

(2) An insolvency practitioner who is suspended or removed from the practice of accountancy or law or any other prescribed profession by any professional body in this country or by a comparable professional body outside this country, shall give notice of that fact to the Registrar within seven days after the insolvency practitioner receives notice of the suspension or removal from practice of the profession.

(3) Where the Registrar

(a) receives a notice under subsection (2);

(b) is otherwise advised by the professional body concerned; or

(c) has reasonable grounds to suspect that an insolvency practitioner has been suspended or removed by the relevant professional body from the practice of accountancy or law or any other prescribed profession or is unfit to continue to act as an insolvency practitioner, after providing the insolvency practitioner with an opportunity to be heard,

the Registrar may suspend the insolvency practitioner from continuing in office as an insolvency practitioner, pending

(d) the making of further inquiries,

(e) the making of an application to the Court under section 160, or

(f) the making of a prohibition order by the Court.

(4) The Registrar shall enter against the name of the person concerned in the register of insolvency practitioners any of the following matters that may affect that person:

(a) that the person has been the subject of a prohibition order by the Court under section 71 or 160;

(b) that the person has been suspended or removed from the practice of accountancy or law or the practice of any other prescribed profession by any professional body in the country or by any comparable body outside the country where the Registrar has received notice to that effect dom the professional body or from the person concerned;

(c) that the person has died; or

(d) that the person has ceased to practise as an insolvency practitioner and requested the Registrar to remove the name of that person from the register.

162. Disclosure to and consultation with Registrar

(1) A person who holds or at any time has held office as an agent for debenture holders or trustee of holders of any security issued by a company or who has been an auditor of a public company shall disclose to the Registrar information that relates to the affairs of the company obtained in the course of holding that office where, in the opinion of the person

(a) the company is insolvent, is likely to become insolvent or is in serious financial difficulties;

(b) the company has breached, or is likely to breach in a significant respect

(i) the terms of the agency deed or trust deed for debenture holders or other security holders; or

(ii) the terms of the offer of any securities; or

(c) the disclosure of the information is likely to assist, or be relevant to the exercise of any power conferred on the Registrar under this section.

(2) An auditor or agent for debenture holders, trustee for security holders shall take reasonable steps to inform the company concerned of the intention to disclose information and the nature of the information before disclosing that information to the Registrar.

(3) The agent for debenture holders, trustee for security holders or the auditor who has made a disclosure to the Registrar,

(a) may, on the initiative of the agent, trustee or auditor consult with the Registrar, or

(b) may be required by the directors to consult with the Registrar, on the position of the company and the way in which the difficulties of the company may be addressed.

(4) In order to address the difficulties of the company identified by a consultation under subsection (3), the Registrar may

(a) give advice and assistance in connection with any scheme for resolving the difficulties of the company, or

(b) appoint an independent adviser to work with the company to address the difficulties and report to the Registrar.

(5) An action or proceedings, including disciplinary proceedings by a professional tribunal, body or authority having jurisdiction in respect of professional conduct, shall not lie against any agent for debenture holders or trustee for security holders or auditor arising from the disclosure in good faith of information to the Registrar in accordance with subsection (1)-

163. Appointment of one or three insolvency practitioners

(1) One or three persons may be appointed as insolvency practitioners in any case where this Act provides for the appointment of an insolvency practitioner.

(2) Where one or three persons are appointed as insolvency practitioners of a company

(a) the functions of the insolvency practitioner may be performed or exercised by a majority of the insolvency practitioners unless the order, instrument or resolution that appoints the insolvency practitioners provides otherwise; and

(b) the insolvency practitioners may act jointly and severally to the extent that the insolvency practitioners exercise the same powers unless expressly provided to the contrary in the appointing document.

(3) A reference in this Act to an insolvency practitioner refers to the insolvency practitioner or insolvency practitioners as the case requires.

164. Qualified privilege in respect of proceedings for defamation

An insolvency practitioner shall have qualified privilege in any proceedings for defamation in respect of matters included in a report or any other document prepared under this Act.

Agreements
165. Netting agreement

(1) Parties to a qualified financial contract shall, where a party becomes insolvent, treat the qualified financial contract in accordance with this Act, the Securities Industry Act, 2016 (Act 929) and the Banks and Specialised Deposit-Taking Institutions Act, 2016 (Act 930) or any other applicable enactment.

(2) Subsection (1) does not apply to a qualified financial contract where the qualified financial contract contains a netting agreement.

(3) A netting agreement shall not

(a) be regarded as a creditor claim, and

(b) affect the ranking of claims or distribution of dividends to creditors during insolvency.

166. Enforcement of netting agreement

(1) Where a qualified financial contract contains provisions of a netting agreement, the netting agreement is enforceable in accordance with the terms of the contract including enforcement against an insolvent party and where applicable, enforcement against a guarantor or any other person who provided security for the insolvent party.

(2) An enforcement under subsection (1) shall not be stayed, avoided or limited by

(a) an action of the liquidator;

(b) any other enactment relating to bankruptcy, re-organisation, composition with creditor, receivership or any other insolvency proceedings that the insolvent party may be subject to; or

(c) any other enactment that may be applicable to the insolvent party.

(3) For the purposes of section 165 and this section, a “qualified financial contract” includes a financial agreement, contract or transaction which provides for a term or condition incorporated into the agreement by reference to another contract or transaction, pursuant to which payment or delivery obligations are due to be performed at a certain time or within a certain period of time such as

(a) a currency, cross-currency or interest rate swap;

(b) a basis swap;

(c) a spot, future, forward or other foreign exchange transaction;

(d) a commodity swap;

(e) a forward rate agreement;

(f) a currency or interest rate future;

(g) a currency or interest rate option;

(h) an equity derivative, such as an equity or equity index swap, equity forward, equity option or equity index option;

(i) a derivative relating to bonds or other debt securities or to a bond or debt security index such as a total return swap, forward option or index option;

(j) a credit derivative such as a credit default swap, credit default basket swap, total return swap or credit default option;

(k) an inflation or any other economic statistics derivative;

(l) a spot, future, forward or any other securities or commodities transaction;

(m) a securities contract including a margin loan and an agreement to buy, sell, borrow or lend securities;

(n) a commodities contract including an agreement to buy, sell, borrow or lend commodities; a

(o) collateral arrangement;

(p) an agreement to clear or settle securities transactions or to act as a depository for securities;

(q) any other agreements, contracts or transactions similar to an agreement, contract or transaction specified under paragraphs (a) to (p),’

(r) any swap, forward, option, contract for differences or other derivatives in respect of, or combination of, one or more agreements;

(s) contracts referred to in paragraphs (a) to (q); and

(t) any other agreement, contract or transaction designated as a qualified financial contract by the Securities and Exchange Commission, the Bank of Ghana or any other relevant authority by notice published in the Companies Bulletin.

Miscellaneous Matters
167. Regulations

(1) The Minister shall, within twelve months after the coming into force of this Act, by legislative instrument, make Regulations to

(a) prescribe the fees to be paid under this Act;

(b) prescribe the thresholds to determine the inability of a company to pay the debts or other obligations of the company;

(c) prescribe the procedure for

(i) a meeting of creditors;

(ii) a meeting of shareholders;

(iii) a watershed meeting; and

(iv) the appointment, removal, resignation and filling of vacancies of insolvency practitioners;

(d) provide the criteria for proving debts;

(e) provide for reporting procedures;

(f) provide for matters in relation to cross-border insolvency proceedings; and

(g) provide for any other matter necessary for the effective implementation of the provisions of this Act.

(2) The Minister shall, in making the Regulations under paragraph (f) of subsection (1), be satisfied that

(a) the Republic and the foreign country concerned are parties to an agreement for mutual recognition of insolvency proceedings;

(b) the level of recognition given to the interest of Ghanaian debtors and creditors in an insolvency proceeding in the foreign country and the terms of the agreement referred to in paragraph (a) provide protection for the interest of debtors and creditors in the country; or

(c) it is in the public interest to do so.

168. Guidelines

The Registrar may issue guidelines in respect of

(a) fees to be paid by insolvency practitioners;

(b) any other matter necessary for the effective implementation of this Act; and

(c) remuneration of the administrator or the restructuring officer.

169. Interpretation

In this Act, unless the context otherwise requires,

administration” means a process of enabling the rehabilitation of a company that is financially distressed beginning when an administrator is appointed to perform duties necessary to achieve the objects laid out in subsection (1) of section 1 and ending as set out in subsection (2) of section 2;

administrator” means the person who is appointed the administrator of a company in administration;

agreement” means restructuring agreement referred to in section 44;

“appointing document” means the document that appoints an insolvency practitioner;

body corporate” means a corporation formed under the Companies Act, 2019 (Act 992) or otherwise and whether in Ghana or elsewhere but does not include a corporation sole such as an incorporated office;

“Companies Act” means the Companies Act, 2019 (Act 992);

“Companies Bulletin” means the record of official statements kept and maintained by the Registrar of Companies in respect of company matters provided for by any relevant enactment;

“company” means a body formed and registered under the Companies Act;

“constitution” means the rules and regulations of a company established in accordance with the Companies Act;

“contingent creditor” means a person towards whom, under an existing obligation, the company may or will become subject to a liability on the occurrence of a future event;

“contributory” includes

(a) a person liable to contribute to the assets of a company in the event of the company being wound up,

(b) a person alleged to be a contributory for the purpose of the proceedings for determination, and the proceedings before the final determination of the persons who are to be deemed to be contributories;

“convening period” has the meaning assigned to it by section 24;

"Court" means High Court;

"enforcement process" in relation to property, means

(a) execution against property; or

(b) any other court process in relation to that property;

"financial statements" in relation to a company includes

(a) statement of financial position;

(b) statement of comprehensive income;

(c) statement of changes in equity;

(d) statement of cash flows; and

(e) description of significant accounting policies and explanatory notes to the financial statements prepared in compliance with International Financial Reporting Standards approved or adopted by the Institute of Chartered Accounts or any other standards approved or adoption by the Institute;

"insolvency practitioner" has the meaning assigned to it in section 154;

"insolvent" means unable to pay debts as the debts fall due;

"liquidation" in relation to a company means the winding up of the company;

"liquidator" means the person other than the official liquidator who is responsible for the liquidation of a company;

"Minister" means the Minister responsible for Justice;

"negative net worth" means where the value of the assets of the company is less than the liabilities of the company taking into account the contingent and prospective liabilities of the company;

"netting agreement" includes

(a) an agreement between two parties that provides for net settlement of present or future payment or delivery obligations or entitlements arising under or in connection with one or more qualified financial contracts entered into under the agreement by the parties to the agreement, and entered into;

(b) an agreement between two parties that provides for the net settlement of the amount due under two or more agreements referred to in paragraph (a), or

(c) a collateral arrangement related to an agreement under paragraph (n2 or (é2 entered into by the parties under paragraph (a) or (b), before or after the coming into force of this Act;

“Office of the Registrar of Companies” means the corporate statutory body established to register and regulate companies under the Companies Act, 2019 (Act 992);

“official liquidation”, in relation to a company, means the winding-up of a company carried out by the Registrar of Companies who is the official liquidator;

“official liquidator” means the Registrar of Companies; “official winding-up” means a winding-up of a company under sections 80 to 144 of this Act;

“ordinary resolution” means a resolution by simple majority;

“Post-Commencement Financing” means any

(a) remuneration or reimbursement for expenses or any other amount of money relating to employment that becomes due and payable by a company to an employee during the business restructuring or administration proceedings of the company but that is not paid to the employee; and

(b) financing obtained by the company including trade financing and venture capital during the administration or restructuring proceedings of the company and may be secured to the lender by utilising an asset of the company that is not otherwise encumbered;

“preference share” means a share which does not entire the holder of the share to a right to participate beyond a specified amount in a distribution whether by way of dividend, or on redemption in a winding-up or otherwise;

“preferential claim” means a claim which is a preferential debt in accordance with section 107 except for the payment of the fees and expenses properly incurred by the liquidator or administrator in carrying out the functions and duties of the liquidator or administrator;

“property” means movable or immovable property;

“prospective creditor” means a person to whom the company is indebted in a sum of money not immediately payable;

“provable debt” means an obligation, the value of which is capable of assessment in money, being

(a) an obligation which, apart from this Act, would have been enforceable by the creditor against the company at the date on which the winding-up commenced, or

(b) an existing or a future obligation, other than an obligation unenforceable by virtue of the law relating to limitation of actions, which by reason of a transaction took place before the date, which might apart from this Act, have become enforceable by the creditor against the company after that date, and a reference in sections 80 to 148 to the value of a provable debt is a reference to the value of the debt apart from the value of the debt on that date;

“receiver” means

(a) a person appointed to take possession of property in receivership and deal with the property as directed by the Court or the instrument of appointment; and

(b) an insolvency practitioner as defined in section 154; “Registrar” means Registrar of Companies;

“restructuring agreement” means the agreement that is executed by a company and the creditors of the company to provide for payments towards the debts of the creditors;

“restructuring officer” means the person who is appointed the administrator of a restructuring agreement;

“secured creditor” means a person entitled to a charge on or over an identifiable property owned by a debtor;

“set-off” means the application of a sum of money owed to a person in satisfaction or reduction against a claim by another party for a sum of money owed by that first person;

“special resolution” means a resolution of creditors passed in accordance with section 82;

“unsecured creditor” means a creditor whose debt is not secured by any asset of the company and does not fall into any other classes specified in subsection (3) of section 107;

“watershed meeting” means a meeting of creditors called by the administrator to decide the future of a company and, in particular, whether the company and the creditors should execute a restructuring plan or wind-up the company; and

“working day” means a weekday other than a public holiday.

170. Repeal and savings

(1) The Bodies Corporate (Official Liquidations) Act, 1963 (Act 180) is repealed.

(2) Despite the repeal of Act 180, the Regulations, notices, orders, directions, appointments or any other act lawfully made or done under the repealed enactment and in force immediately before the commencement of this Act shall be considered to have been made or done under this Act and shall continue to have effect until reviewed, cancelled or terminated.

171. Transitional provisions

(1) The Minister shall, within two years after the coming into force of this Act, ensure that the Ghana Association of Restructuring and Insolvency Advisors is established under an Act of Parliament.

(2) Until the establishment of the Ghana Association of Restructuring and Insolvency Advisors under an Act of Parliament, the Association shall assist the Registrar of Companies to train and license existing insolvency practitioners.

SCHEDULE

(Section 152)

CROSS-BORDER INSOLVENCY PROCEEDINGS

General Provisions

International obligations of Ghana

1. An action shall not be taken within the meaning of this Schedule that conflicts with an obligation of Ghana arising out of any treaty or other form of agreement to which Ghana is a party with one or more other States.

2. The functions referred to in this Schedule relating to recognition of foreign proceedings and co-operation with foreign courts shall be performed by a court of competent jurisdiction.

Authorisation of insolvency practitioner to act in a foreign State

3. An insolvency practitioner is authorised to act in a foreign State on behalf of a Ghana insolvency proceeding, as permitted by the applicable foreign law.

Public policy exception

4. (1) Nothing in this Schedule prevents a Court from refusing to take an action if that action is contrary to the public policy of Ghana.

(2) Before the Court refuses to take an action under subparagraph (1), the Court shall consider whether to refer the case to the Attorney- General for consideration.

Additional assistance under other laws

5. Nothing in this Schedule limits the power of a Court or an insolvency practitioner to provide additional assistance to a foreign representative tinder any other law of the Republic.

Access of Foreign Representatives and Creditors to Courts in Ghana

Right of direct access

6. A foreign representative may apply directly to the Court.

Limited jurisdiction

7. An application pursuant to this Schedule made to the Court by a foreign representative does not subject that foreign representative or the foreign assets and affairs of the debtor to the jurisdiction of the Court for any purpose other than the application.

Application by a foreign representative to commence insolvency proceedings in Ghana

8. A foreign representative may apply to commence an insolvency proceeding in Ghana if the requirements for commencing such a proceeding are met.

Participation of a foreign representative in an insolvency proceeding in

9. Subject to any enactment, a Court may upon recognition of a foreign proceeding before the Court, permit a foreign representative to participate in an insolvency proceeding in Ghana regarding the debtor.

Access of foreign creditors to an insolvency proceeding in Ghana

10. (1) Subject to subparagraph (2), a foreign creditor has the same rights as a Ghanaian creditor regarding the commencement of, and participation in, an insolvency proceeding in Ghana.

(2) Subparagraph (1) does not affect the ranking of claims in an insolvency proceeding in Ghana or the exclusion of foreign tax and social security claims from such a proceeding.

Notification to foreign creditors of an insolvency proceeding in Ghana

11. (1) Where in relation to an insolvency proceeding in Ghana notification is required to be given to creditors in Ghana, the notification shall also be given to the known creditors that do not have addresses in Ghana.

(2) The notification shall be made to the foreign creditors individually, unless the Court determines that under the circumstances, some other form of notification is more appropriate.

(3) Letters, rogatory or other similar formality is not required.

(4) The Court may order that appropriate steps be taken with a view to notifying any creditor whose address is not yet known.

(5) Where a notification of commencement of a proceeding is required to be given to a foreign creditor, the notification shall

(a) indicate a reasonable time period for filing claims and specify the address for filing the claims;

(b) indicate whether the secured creditor is requested to file a secured claim; and

(c) contain any other information that is required to be included in the notification to creditors pursuant to this Act and the orders of the Court.

Recognition of a Foreign Proceeding and Relief

Application for recognition of a foreign proceeding

12. (1) A foreign representative may apply to the Court for an order to recognise a foreign proceeding in which that foreign representative has been appointed.

(2) An application for recognition shall be accompanied by

(a) a certified copy of the decision commencing the foreign proceeding and appointing the foreign representative;

(b) a certificate from the foreign Court confirming the existence of the foreign proceeding and the appointment of the foreign representative; or

(c) any other evidence acceptable to the Court of the existence of the foreign proceeding and of the appointment of the foreign representative, in the absence of evidence referred to in subparagraphs (a) and (b) of subparagraph (2).

Presumptions concerning recognition

13. (1) If the decision or certificate referred to in subparagraph (2) of paragraph 12 indicates evidence of the existence of a substantive foreign proceeding and the appointment of a person or body as a foreign representative the Court may, subject to the rules of Court presume the same and that the person or body is a foreign representative.

(2)The Court may presume that documents submitted in support of the application for recognition are authentic, whether or not the documents have been certified.

(3) In the absence of proof to the contrary, the registered office of the debtor, or habitual residence in the case of an individual is presumed to be the centre of the main interests of the debtor.

Decision to recognise a foreign proceeding

14. (1) Subject to paragraph 4, a foreign proceeding shall be recognised if

(a) that foreign proceeding is taking place in the State where the debtor has the centre of the main interests of the debtor;

(b) the foreign representative applying for recognition is a person or body required to administer the reorganisation or the liquidation of the assets or affairs of a debtor or to act as a representative of the foreign proceeding;

(c) the application meets the requirements of subparagraph (2) of paragraph 12; and

(d) the application has been submitted to the Court.

(2) Subject to the Rules of Court, a foreign proceeding shall be recognized

(a) as a foreign main proceeding if the proceeding is taking place in the State where the debtor has the centre of the main interests of the debtor; or

(b) if the proceeding is taking place in a State where the debtor has an establishment in the foreign State.

(3) An application for recognition of a foreign proceeding shall be decided upon at the earliest possible time.

(4) As soon as practicable, after the Court recognises the foreign proceeding under subparagraph (1), the foreign representative shall notify the debtor, in the prescribed form, that the application has been recognised.

(4) Paragraphs 12, 13, 14 and 16 do not prevent modification or termination of recognition if it is shown that the grounds for granting the recognition were fully or partially lacking or have ceased to exist.

Subsequent information

15. A foreign representative shall, after the filing of an application for recognition of the foreign proceeding inform the Court promptly of

(a) any substantial change in the status of the recognised foreign proceeding, or the status of the appointment of the foreign representative; and

(b) any other foreign proceeding regarding the same debtor that becomes known to the foreign representative.

Relief that may be granted upon application for recognition of a foreign proceeding

16. (1) Subject to the Rules of Court, where relief is urgently needed to protect the assets of the debtor or the interests of a creditor, a foreign representative may apply to the Court to grant relief of a provisional nature, including

(a) staying execution against the assets of the debtor; and

(b) entrusting the administration or realisation of all or part of the assets of the debtor located in Ghana to the foreign representative or any other person designated by the Court, in order to protect and preserve the value of assets that are perishable, susceptible to devaluation or otherwise in jeopardy.

(2) As soon as practicable after the Court grants relief under subparagraph (1), the foreign representative shall notify the debtor, in the prescribed form, of the relief that has been granted.

(3) The Court may refuse to grant relief under this paragraph if that relief would interfere with the administration of a foreign main proceeding.

Effects of recognition of a foreign main proceeding

17. (1) Subject to the Rules of Court, upon recognition by the Court of a foreign proceeding that is a foreign main proceeding

(a) commencement or continuation of individual actions or individual proceedings concerning the assets, rights, obligations or liabilities of the debtor is stayed;

(b) execution against the assets of the debtor is stayed; and

(c) the right to transfer, encumber, or otherwise dispose of any assets of the debtor is suspended.

(2) Subparagraph(1) does not prevent the Court, on the application of any creditor or interested person, from making an order, subject to such conditions as the Court thinks fit, that the stay or suspension does not apply in respect of any particular action or proceeding, execution, or disposal of assets.

(3) Subparagraph (a) of subparagraph (1) does not affect the right of a creditor to commence an individual action or proceeding to the extent necessary to preserve a claim against the debtor.

(4) Subparagraph (1) does not affect the right of a creditor to request the commencement of a Ghana insolvency proceeding or the right to file claims in such a proceeding.

Relief that may be granted upon recognition of a foreign proceeding

18. (1) Upon recognition by the Court of a foreign proceeding, the Court may, where it is necessary to protect the assets of the debtor or the interests of the creditors, at the request of the foreign representative, grant an appropriate relief.

(2) Upon recognition by the Court of a foreign proceeding, the Court may, at the request of the foreign representative concerned, entrust the distribution of the whole or part of the assets of the debtor that are located in Ghana to the foreign representative or another person designated by the Court, if the Court is satisfied that the interests of creditors in Ghana are adequately protected.

(3) In granting relief under this paragraph to a representative of a foreign non-main proceeding, the Court shall satisfy itself that the relief relates to assets that, under the laws of Ghana, should be administered in the foreign non-main proceeding or concern information required in that proceeding.

Protection of creditors and other interested persons

19. (1) Subject to the Rules of Court in granting or denying relief under paragraph 16 or 18 or in modifying or terminating relief under subparagraph (3), the Court shall ensure that the interests of the creditors and other interested persons, including the debtor, are adequately protected.

(2) The Court may subject the relief granted under paragraph 16 or 18 to conditions the Court considers appropriate.

(3) The Court may, at the request of the foreign representative or a person affected by the relief granted under paragraph 16 or 18, or on the motion of the Court, modify or terminate such relief.

(4) The Court shall, on application of the statutory receiver, terminate the relief granted under paragraph 16 or 18 if

(a) an application for recognition has been made in respect of a debtor that is a bank or financial institution licensed under the Banks and Specialised Deposit-Taking Institutions Act, 2016 (Act 930);

(b) the Court has granted that application or the Court has granted relief under paragraph 16; and

(c) the debtor is placed in statutory receivership in accordance with the Banks and Specialised Deposit-Taking Institutions Act, 2016 (Act 930) after that application or relief has been granted.

Actions to avoid acts detrimental to creditors

20. (1) Subject to the Rules of Court, upon recognition by the Court of a foreign proceeding, the foreign representative concerned may initiate an action that an insolvency practitioner may take in respect of a Ghana insolvency proceeding that relates to a transaction, including any gift, improvement of property, security, or charge that is voidable or that may be set aside or altered.

(2) Where the foreign proceeding is a foreign non-main proceeding, the Court shall ensure that the action relates to assets that, under the laws of Ghana, ought to be administered in the foreign non-main proceeding.

(3) Nothing in subparagraph (1) affects the doctrine of relation back as the doctrine is applied in Ghana.

Intervention by a foreign representative in Ghana insolvency proceeding

21. Upon recognition by the High Court of a foreign proceeding, the foreign representative may, if the requirements of the laws of Ghana are met, intervene in any proceeding in which the debtor is a party.

Co-operation with Foreign Courts and Foreign Representatives

Co-operation and direct communication between the Court and foreign courts or foreign representatives

22. (1) In respect of matters referred to in section 150, a Court shall co-operate to the maximum extent possible with the foreign court or foreign representatives concerned, either directly or through an insolvency practitioner.

(2) The Court is entitled to communicate directly with or to request information or assistance directly from foreign courts or foreign representatives.

Co-operation and direct communication between the insolvency practitioner and foreign courts or foreign representatives

23. (1) In matters referred to in section 151, an insolvency practitioner shall, in the exercise of functions and subject to the supervision of the Court, co-operate with foreign courts or foreign representatives.

(2) The insolvency practitioner is entitled, in the exercise of functions and subject to the supervision of the Court to communicate directly with foreign courts or foreign representatives.

Forms of co-operation

24. For the purposes of co-operation, paragraphs 22 and 23 may be implemented by any appropriate means including

(a) the appointment of a person or body to act at the direction of the Court;

(b) the communication of information by any means considered appropriate by the Court;

(c) the co-ordination of the administration and supervision of the assets and affairs of the debtor;

(d) the approval or implementation by Courts of agreements concerning the co-ordination of proceedings; and

(e) the co-ordination of concurrent proceedings regarding the same debtor.

Concurrent Proceedings

Commencement of an insolvency proceeding in Ghana after recognition of a foreign main proceeding

25. (1) After recognition by the Court of a foreign main proceeding, a Ghana insolvency proceeding may be commenced only if the debtor has assets in Ghana.

(3) The Ghana insolvency proceeding shall be restricted to the assets of the debtor that are located in Ghana and, to the extent necessary to implement co-operation and co-ordination for purposes of paragraphs 22, 23 and 24, to other assets of the debtor that, under the laws of Ghana, should be administered in that proceeding.

Co-ordination of a Ghana inso1vency proceeding and a foreign proceeding

26. Where a foreign proceeding and a Ghana insolvency proceeding are taking place concurrently regarding the same debtor, the Court shall seek co-operation and co-ordination under paragraphs 22, 23 and 24 and the following shall apply:

(a) when the Ghana insolvency proceeding is taking place at the time the application for recognition of the foreign proceeding is filed

(i) any relief granted under paragraph 16 or 18 shall be consistent with the Ghana insolvency proceeding; and

(ii) if the foreign proceeding is recognised in Ghana as a foreign main proceeding, paragraph 17 does not apply;

(b) when the Ghana insolvency proceeding commences after recognition, or after the filing of the application for recognition, of the foreign proceeding

(i) any relief in effect under paragraph 16 or 18 shall be reviewed by the Court and shall be modified or terminated if inconsistent with the Ghana insolvency proceeding; and

(ii) if the foreign proceeding is a foreign main proceeding, the stay and suspension referred to in subparagraph (1) of paragraph 17 shall be modified or terminated pursuant to subparagraph (2) of paragraph 17 if inconsistent with the Ghana insolvency proceeding; and

(c) in granting, extending or modifying relief granted to a representative of a foreign non-main proceeding, the Court shall ensure that the relief relates to assets that, under the laws of Ghana, should be administered in the foreign non-main proceeding or concerns information required in that proceeding.

Co-ordination of more than one foreign proceeding

27. For purposes of section 150 in respect of more than one foreign proceeding regarding the same debtor, the Court shall seek co-operation and co-ordination under paragraphs 22, 23 and 24 and the following requirements shall apply:

(a) any relief granted, under paragraph 16 or 18 to a representative of a foreign non-main proceeding after recognition of a foreign main proceeding shall be consistent with the foreign main proceeding;

(b) a foreign main proceeding is recognised after recognition, or after the filing of an application for recognition, of a foreign non-main proceeding, the Court shall review any relief under paragraph 16 or 18 and shall modify or terminate if the relief is inconsistent with the foreign main proceeding; and

(c) if, after recognition of a foreign non-main proceeding, another foreign non-main proceeding is recognised, the Court shall grant, modify or terminate the relief for the purpose of facilitating co-ordination of the proceedings.

Presumption of insolvency based on recognition of a foreign main proceeding

28. In the absence of evidence to the contrary, recognition of a foreign main proceeding is, for the purpose of commencing a Ghana insolvency proceeding, proof that the debtor is insolvent.

Rule of payment in concurrent proceedings

29. Without prejudice to secured claims or rights in rem, a creditor who has received part payment in respect of a claim in a proceeding pursuant to a law relating to insolvency in a foreign State shall not receive payment for the same claim in a Ghana insolvency proceeding regarding the same debtor, if the payment to the other creditors of the same class is proportionately less than the payment the creditor has already received.

Interpretation

30. (1) In this Schedule, unless the context otherwise requires,

“court” means a court of competent jurisdiction;

“establishment” means any place of operations where the debtor carries out a non-transitory economic activity with human resource and goods or services;

“foreign court” means a judicial or other competent authority that controls or supervises a foreign proceeding;

“foreign main proceeding” means a foreign proceeding taking place in the State where the debtor has the centre of the main interests of the debtor;

“foreign non-main proceeding” means a proceeding, other than a foreign main proceeding, taking place in a State where the debtor has an establishment;

“foreign proceeding” includes a collective judicial or administrative proceeding in a foreign State, an interim proceeding pursuant to a law relating to insolvency in which proceeding the assets and affairs of the debtor are subject to the control or supervision by a foreign court, for the purpose of reorganisation or liquidation;

“foreign representation” means a person or body appointed, including one appointed to administer the re organisation or the liquidation of the assets or affairs of the debtor, to act as a representative of a foreign proceeding;

“Ghana insolvency proceeding” means a collective judicial or administrative proceeding pursuant to the law in Ghana relating to the bankruptcy, liquidation, receivership, judicial management, statutory management, or voluntary administration of a debtor, or the reorganisation of the affairs of a debtor, under which the assets and affairs of the debtor are administered, or the assets of the debtor are or will be realised for the benefit of secured or unsecured creditors;

“insolvency proceeding” means a collective judicial or administrative proceeding and an interim proceeding in accordance with a law relating to insolvency in which the assets and affairs of a debtor are subject to the control or supervision by a judicial or other competent authority with the mandate to control or supervise that proceeding for the purpose of reorganisation or liquidation; and

“insolvency practitioner” has the meaning assigned to in section 154.

(2) In interpreting this Schedule, regard shall be had to

(a) the international origin and the need to promote uniformity in the application of the schedule;

(b) the need to promote good faith; and

(c) compliance with the Rules of Court.

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