The Supreme Court of Bermuda has confirmed once again its willingness to order Confidentiality Orders in cases that involve the administration of private trusts. In the 2018 case of In the Matter of the E Trust (the “E Trust”), Acting Justice, Shade Subair Williams (subsequently appointed as a Puisne Judge) reaffirmed previous rulings that private trust proceedings can be anonymized and heard privately in Chambers.
The Facts
In the case of Delco Participation BV v Green Elite Limited [2018] the Court of Appeal considered the test for appointing liquidators to a company following an alleged loss of substratum.
In the latest judgment regarding the DPH liquidation,(1) the BVI Court of Appeal upheld the appointment of BVI provisional liquidators in respect of a Swiss company and clarified that evidence of dissipation of assets (in the Mareva sense) may not be a pre-condition to the appointment of provisional liquidators.
A recent BVI Court of Appeal decision in KMG International NV v DP Holding SA serves as a useful reminder to keep an eye on the clock when seeking the appointment of liquidators to a company in the British Virgin Islands.
KMG had filed an originating application seeking the appointment of liquidators to DPH (a company incorporated in Switzerland) and had successfully applied for:
Claims of passing off are rare in the British Virgin Islands and a recent attempt to bring a BVI action in relation to goodwill held outside the jurisdiction has failed.(1)
The claimants were Egyptian private equity investors with over $516 million in assets under management and a long, respected track record in development and management of various investment projects in the Egyptian market.
The defendants included a former employee of the claimants and the companies through which he operated.
The recent BVI Court of Appeal decision in KMG International NV v DP Holding SA serves as a useful reminder to keep an eye on the clock when seeking the appointment of liquidators to a company in the BVI.
The Royal Court of Jersey was recently required to consider its approach when a trustee in bankruptcy appointed in a foreign jurisdiction (the “Trustee”), whose appointment has been recognised in Jersey by order of the Court and who has been authorised to obtain documents and/or information for particular purposes, is later subject to coercive measures in his home jurisdiction requiring the disclosure of such material for different, unauthorised purposes.
On 6 November 2017 the BVI Commercial Court, sitting in St Lucia, placed Sherbrooke Group Limited (Sherbrooke) into liquidation. Mark McDonald and Michael Leeds of Grant Thornton were appointed as Sherbrooke’s liquidators.
In the January 2018 edition of our dispute resolution and insolvency bulletin, we review eight cases from the BVI Commercial Court and BVI Court of Appeal from the past year. As most readers will be aware, the main non-legal news last year was that in September 2017, the British Virgin Islands were hit by category five hurricanes Irma and Maria which caused considerable devastation. The BVI Commercial Court temporarily relocated to St Lucia and impressively got back on its feet quickly in order to support the international financial services business of the BVI.
Peter Ferrer, of the British Virgin Islands office of Harneys, reviews forum shopping, Chapter 11 protection and just and equitable winding up, with an in-depth look at the Pacific Andes saga is the practice of choosing the most favourable jurisdiction in which to bring a claim. It is often used as a pejorative – a form of jurisdictional gamesmanship – but in principle, there is nothing wrong in seeking to have a case heard in the forum which is most favourable to the client.