With local and global inflation at their highest in decades, rising interest rates, continuing supply chain woes and the effects of the Russia-Ukraine conflict being felt across Asia, many businesses that are established in the British Virgin Islands (BVI) and the Cayman Islands are scrutinising the available tools to avoid liquidity issues and potential insolvency. The economic fallout from covid-19 and related restrictive measures, along with bond defaults by various PRC property developers, has only exacerbated this crisis.
In the recent decision of Evergreen International Holdings Limited, delivered on 11 January 2022, the Grand Court of the Cayman Islands made an order for the immediate winding up of a company notwithstanding the company’s cross-applications for an adjournment of the winding up petition and the appointment of “light-touch” provisional liquidators for restructuring purposes. The Court dismissed the company’s cross-applications on the basis that there was no credible evidence which supported the company’s assertion that a viable restructuring was imminent.
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This article considers the range of vehicles available in the Cayman Islands for alternative investment fund ("AIF") structures designed for financial institutions, pension funds, sovereign wealth funds, family offices and (U)HNWs (as opposed to retail investors), as well as the legal and regulatory considerations that may influence the structure of an AIF. A summary of the key similarities and differences between the regulation of closed-ended and open-ended AIFs in the Cayman Islands is also considered.
Cayman Islands AIF Vehicles
Voluntary liquidations generally
As the conclusion of 2019 approaches, clients should give some thought to whether or not they have Cayman entities which they are no longer using and wish to liquidate prior to the end of 2019 in order to, among other things, avoid annual government registration fees due in January 2020. A voluntary liquidator of a Cayman company or exempted limited partnership (ELP) is required to hold the final general meeting for that company or file the final dissolution notice for that ELP on or before 31 January 2020.
In certain circumstances the official liquidator of a Cayman company may be able to take action to recover assets which have been transferred in the run up to the company's insolvency. It is important for those concerned with the affairs of a Cayman company in the twilight of insolvency to be aware of the statutory powers available to the official liquidator and the Grand Court in the Cayman Islands.
Voidable preferences
The Grand Court has handed down an instructive judgment appointing "light-touch" provisional liquidators over Midway Resources International ("Midway"), a pan-African focused upstream oil and gas company, incorporated in the Cayman Islands. The judgment of Segal J will be of particular interest to companies considering the appointment of provisional liquidators intended to work alongside the board of directors to promote a restructuring plan, under section 104(3) of the Companies Act (2021 Revision) (the "Act").
The Court of Appeal has recently clarified that if a foreign company, being a shareholder of a Cayman Islands company, issues a winding up petition against that company and there is evidence that the petitioning company will be unable to pay an adverse costs order if the respondent is successful at trial, then the Cayman Islands court has an inherent jurisdiction to order the petitioning foreign company to provide security for the respondent's costs – Re Dyxnet Holdings1.
A recent decision of the Cayman Islands Grand Court is an important reminder that a liquidator's costs claimed from trust assets must be proportionate and reasonable, and will be refused on certain grounds.
Background
Legislative reforms to Part V of the Cayman Islands Companies Act will shortly be coming into force which will, amongst other things, introduce a new restructuring officer regime available to certain debtors in financial distress.