Conyers partner Jonathon Milne and associate Rowana-Kay Campbell in the Cayman Islands, and partner Anna Lin in Hong Kong, explain why the new Cayman restructuring regime is likely to be a welcome addition to the legislative landscape for prudent directors – particularly in light of current macro-economic conditions and the difficulties many companies are facing.

A much-anticipated corporate restructuring regime will be enacted in the Cayman Islands later this year through amendments to Part V of the Cayman Islands Companies Act.

On 26 April 2022, Chief Justice Smellie QC in Re Premier Assurance Group SPC Ltd. (in Official Liquidation) sanctioned a decision by the joint official liquidators (“JOLs”) of Premier Assurance Group SPC Ltd (in Official Liquidation) (the “Company”) to return (or procure the return of) certain payments held by or on behalf of the Company referable to one of its segregated portfolios, Premier Assurance Segregated Portfolio (“PASP”), to the respective payors on the basis that such sums were paid by mistake.

1. Related Fund Entity filings for private funds]

On 1 September 2021, the Cayman Islands Monetary Authority (CIMA) issued a Notice advising industry that a new Related Fund Entity (RFE) form for private funds was available for use via CIMA's Regulatory Enhanced Electronic Forms Submission (REEFS) portal.

Voluntary liquidations generally

Consolidated and amended insolvency and restructuring rules and regulations come into force in the Cayman Islands on 1 February 2018 (the "Amended Rules").

The Amended Rules do not represent a comprehensive overhaul of the rules and regulations but they do make a number of significant changes to the procedural aspects of Cayman Islands domestic and cross-border insolvency and restructuring legislation. These changes largely reflect and codify existing practice.

Companies Winding Up Rules

When a fund fails, the disappointed investors’ sole hope of recompense often rests on the fund’s liquidators gathering in and distributing pari passu as many of the fund’s assets as possible. On the other hand, those investors who successfully redeemed shortly before the fund’s collapse might regard the liquidators’ efforts with a degree of concern. 

The Grand Court of the Cayman Islands has held that depositor protection provisions in Cayman Islands law only apply in respect of depositors with deposits of CI$20,000 (US$24,400) or less.¹  Depositors with more than CI$20,000 on deposit do not benefit from such provisions at all, even for their first CI$20,000.  This means that, for persuasive policy reasons, the position in the Cayman Islands differs from the position in the EU under the deposit guarantee scheme.

The facts behind Mr. Justice Lewison’s recent judgment in Stanford (STANFORD INTERNATIONAL BANK LIMITED [2009] EWHC 1441 (Ch)) have no direct connection with either the British Virgin or Cayman Islands but lawyers there do have particular reason to note the more general principles around the seemingly vexed but important issue of COMI in the context of multi-jurisdictional insolvency.

After much anticipation, the UK Supreme Court has handed down its judgment in BTI 2014 LLC v Sequana S.A. [2022] UKSC 25 - and has authoritatively set the baseline for how directors’ duties evolve as regards shareholders and creditors’ interests when a company is in the zone of insolvency.

Background

Overview  

In a recent decision of the Grand Court of the Cayman Islands (the “Court”) concerning a supervision order in respect of a Cayman company in voluntary liquidation, Kawaley J considered the settled principles in a solvent Cayman Islands liquidation involving a dispute as to the identity of the official liquidators to be appointed.

The Proceeding