The High Court considers questions relating to the location of three companies' COMIs and an alleged "improper motive" regarding the appointment of administrators

PricewaterhouseCoopers (PwC) v Saad Investments Company Limited (SICL) and Singularis Holdings Ltd (SHL)involved an application by PwC for the setting aside of orders made by the Supreme Court of Bermuda in favour of the liquidators that required the production of documents relating to SICL and SHL.  Included among the grounds on which PwC relied to set aside the order were that:

Key Points

• The principle of modified universalism (being the principle underlying the common law power to assist foreign insolvency proceedings) continues to exist
• There is a common law power to order production of information to assist foreign insolvency proceedings
• Common law assistance does not enable office holders to do something they would not be able to do under the insolvency laws by which they are appointed

The Facts

The Facts

The case concerned an application made by the Liquidators of a BVI incorporated company, Peak Hotels and Resorts Limited ("Peak"). The application was intended to determine the effectiveness of a charge granted by Peak to Candey Limited, Peak's former solicitor.

Peak was the holding company of a joint venture vehicle that became the subject of lengthy international litigation proceedings following the breakdown of relations between the joint venture partners and shareholders. Candey acted for peak in the litigation.

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Offshore security enforcement Offshore security enforcement /3 Contents 4 Introduction 5 British Virgin Islands (BVI) 8 Cayman Islands 11 Isle of Man 14 Guernsey 18 Jersey 21 Luxembourg 24 Malta 27 Mauritius 30 About us 31 Key contacts Offshore security enforcement 4\ Introduction This briefing document summarises the key issues in enforcing security in the countries listed and is a general guide. Taylor Wessing does not have offices in the jurisdictions contained in this guide, but has called on the support of the firms acknowledged at the back.

This recent decision on a jurisdictional challenge has provided greater clarity and potentially created a tortious cause of action where a debtor dissipates assets prior to judgment and subsequent freezing order.

Background

In the case of UVW v XYZ (27 October 2016) brought before the BVI Commercial Court, a judgment creditor was seeking court orders for the disclosure by a third party to the proceedings of information relating to a BVI company owned by the judgment debtor. The third party disclosure orders were brought against the registered agent of the BVI Company. The applicant creditor argued that there had been a pattern of behaviour by which the debtor had concealed assets using the BVI vehicle.

In Stichting Shell Pensioenfonds v Krys [2014] UKPC 41, the Privy Council has held that where a company was being wound up in a jurisdiction where it was incorporated, and where a foreign creditor had submitted a proof of debt to the liquidators, that creditor had submitted to the jurisdiction of the administering court, and could not bring proceedings in its own jurisdiction with the aim of obtaining priority over other creditors.

When a company is being wound up in a given jurisdiction, can an anti-suit injunction be sought against relevant creditors or members to prevent them from pursuing proceedings in another jurisdiction with a view to securing priority in the liquidation?

This was the issue for the Privy Council to decide in Stichting Shell Pensioenfonds v Krys and another (British Virgin Islands) (26 November 2014), in what is an interesting instance of the application of anti-suit injunctions within the insolvency framework.

Facts