The Bermuda Commercial Court has provided guidance as to the considerations it will take into account when deciding the identity of the JPLs, further to our article on the Up Energy Group Ltd (the Company) restructuring and the circumstances in which Joint Provisional Liquidators (JPLs) will be appointed to monitor the proposed restructuring of a Be

Section 97 of Bermuda’s Companies Act 1981 imposes a statutory duty on every director to: (a) act honestly and in good faith with a view to the best interests of the company; and (b) exercise the care, diligence, and skill that a reasonably prudent person would exercise in comparable circumstances. The test is therefore an objective one using the reasonably prudent person as a comparator (see Focus Insurance Co Ltd v Hardy [1992] Bda LR 25 which appears to suggest that an element of subjectivity may also be considered in Bermuda.

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Facts
Decision
Comment

Introduction

Facts
First-instance decision
Court of Appeal decision
Comment

In 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.

Facts

In Stanford v Akers the BVI Court of Appeal addressed standing in the context of applications under Section 273 of the Insolvency Act 2003, whereby an aggrieved person can ask the court to reverse or vary a liquidator's decision.

Facts

The liquidators of Chesterfield entered the company into a global settlement agreement with Deutsche Bank AG and Kaupthing, which included the admission of Kaupthing's claim in Chesterfield's liquidation.

In the recent BVI Court of Appeal decisions of Wembley and Sutton ‘disabled’ bearer shareholders were found to have a constitutional right not to be deprived of their property without compensation.

Introduction

In a major development in BVI insolvency law and practice, the BVI Commercial Court has held in Constellation Overseas Limited (BVIHC (Com) 2018/0206 – 2012), that provisional liquidation is available to facilitate a restructuring. The decision brings the British Virgin Islands broadly into line with Cayman and Bermuda, where restructuring provisional liquidations have been used to support several landmark cross-border restructurings in recent years.

Introduction

On May 11 2017 the British Virgin Islands adopted new guidelines for communication and cooperation between courts in cross-border insolvency matters.

`Forum shopping' is the practice of choosing the most favourable jurisdiction in which a claim could be heard. It is often used as a pejorative, a form of jurisdictional gamesmanship, but, in principle, there is nothing wrong in seeking to have the case heard in the forum which is most favourable to the client. It can however lead to some fierce jurisdictional battles particularly in insolvency where the choice can be stark between debtor and creditor friendly procedures.

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.