In the recent decision of Kenneth Krys and Joanna Lau (as Joint Liquidators of Fairfield Sentry Limited in Liquidation) and Stichting Shell Pension Funds, HCVAP 2011/036, the ECSC Court of Appeal provided some clarification of its decision in Westford Special Situations Fund Limited v Barfield Nominees Limited et al HCVAP No. 14 of 2010.
Important clarification was provided today to the insolvency world as the UK Supreme Court in the conjoined appeals in Rubin and New Cap rejected the modified universalist doctrine that established common law rules as to the enforcement of foreign judgments do not (or should not) apply to insolvency orders.
This article sets out the potential impact in the BVI and Cayman of the much anticipated Supreme Court decision in Rubin v. Eurofinance SA [2012] UKSC 46, which was handed down on 24 October 2012. Rubin deals with the issue of whether orders made in Chapter 11 bankruptcy proceedings in the United States can be enforced as judgments of the English Courts.
COMPETING SETS OF RULES AND PRINCIPLES
The Court of Appeal of the Eastern Caribbean Supreme Court sitting in the British Virgin Islands today began hearing arguments in the greatly anticipated appeals involving claims brought by the liquidators of Fairfield Sentry Limited ("Fairfield").
Redemption of shares and consideration
Discounted valuation
Restoration
Finality of foreign judgments
Redemption of shares and consideration
As we reported in a client mailshot earlier this week, the Eastern Caribbean Supreme Court has made important amendment to its rules. The amendments are immediately in force and deal with a number of areas including appeal procedure, costs capping and costs orders.
In an application to wind up a BVI company the BVI Court re-stated the rules on when a foreign judgment creates an issue estoppel. Following The Sennar [1985] 1 WLR 490 the Court found that there would be an estoppel where a foreign judgment is (1) of a court of competent jurisdiction; (2) is final and conclusive; and (3) on the merits.
In a decision of interest in a number of jurisdictions where these types of claims have been made, the BVI Commercial Court handed down judgment today in the claim brought by the liquidators of Fairfield Sentry Limited, a BVI fund which invested in Bernard Madoff’s investment vehicle.
By virtue of his appointment, a liquidator steps into the shoes of the company and so the usual contractual, tortious and equitable remedies are actionable by the liquidator, acting in the name of the company. Claims are most likely to be based on the following:
First published in The Lawyer on July 18, 2011
Western economies, many With recoveries stalling in investors and creditors are considering carefully which jurisdictions will govern their interests in the event of insolvency and what, if anything, can be done to influence the process.
Many investment funds and other vehicles, attracted by tax-neutrality and stability, are incorporated in jurisdictions such as the Cayman Islands and the British Virgin Islands, but with their managers, operations, assets and investors often dispersed globally.