In three recent decisions the courts have examined the limits on a liquidator’s ability to obtain court orders compelling third parties to provide documents held by them, as well as deciding on the recoverability of costs incurred by third parties complying with production orders that are made against them.

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. 

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. The judgment of the Cayman Islands Court of Appeal in Skandinaviska Enskilda Banken AB (Publ) v Simon Conway and David Walker (CICA 2 of 2016), delivered on 18 November 2016, clarifies aspects of the liquidators’ power to claw back certain types of redemption payments made shortly prior to liquidation.

In the October 2016 edition of our dispute resolution and insolvency bulletin we will be focusing on six recent cases from the BVI Court of Appeal and BVI Commercial Court.

OVERVIEW

The cases, include:

The office of the Registrar of Corporate Affairs (the “Registrar”) in the British Virgin Islands (the “BVI”) has responsibility for the incorporation, striking-off and restoration of struck off companies to the register of companies (the “Register”).

ADMINISTRATIVE STRIKE OFF OF A BRITISH VIRGIN ISLANDS COMPANY

The Registrar may strike a company off the Register on a number of different grounds, including:

The office of the Registrar of Corporate Affairs (the “Registrar”) in the British Virgin Islands (the “BVI”) has responsibility for the incorporation, striking off and restoration of companies to the Register of Companies (the “Register”). There are two restoration processes in the BVI;

In our previous bulletin we discussed the ‘safe harbour’ model in the Government’s suggested reforms to the current insolvency laws.

This bulletin considers another of the focus questions in the Proposal Paper: the voiding of ipso facto clauses relating to insolvency events.

Background

On 29 April 2016, the Federal Government released a Proposals Paper titled ‘Improving bankruptcy and insolvency laws’.

The Government is proposing these reforms to encourage entrepreneurship and investment. It hopes to reduce the stigma and detriment around failed business ventures, while still balancing the need to protect creditors.

Carey Olsen's Dispute Resolution Group has successfully secured orders on two separate applications under Guernsey's Protection of Investors and Company Law legislation to place two regulated entities into administration and one company into compulsory liquidation.

The Managing Partner of the firm’s Guernsey office, Advocate John Greenfield, and Senior Associate, Tim Bamford, acted for the Guernsey Financial Services Commission (the "Commission") on both applications.

Our Restructuring and Insolvency team has had further significant success, recently securing the discharge of an administration order over a Guernsey Protected Cell Company to facilitate its voluntary winding up. The team, led by Guernsey based counsel David Jones and including associate Luke Sayer, acted for local insolvency practitioners Tim Le Cornu and Andrea Harris of KRyS Global. 

To our knowledge this is the first time that the Royal Court of Guernsey has ordered that an administration order in Guernsey be discharged so as to facilitate a voluntary winding up.