For the benefit of our clients and friends investing in European distressed opportunities, our European Network is sharing some current developments.

Recent Developments

The Federative Republic of Brazil is the largest country in South America and the world’s fifth largest country, both by land mass (almost 8.6 million square kilometers) and population (more than 200 million people). It is the only lusophone (Portuguese-speaking) country in otherwise Spanish-speaking Latin America and the largest lusophone country in the world. Brazil is a member of the G20, and one of the BRICS countries, along with Russia, India, China and South Africa. The country’s Constitution serves as the foundation of the Brazilian legal framework and sets forth fundamental rights.

Na semana em que a Comissão de Constituição, Justiça e Cidadania (CCJC) da Câmara dos Deputados iniciou o processamento da denúncia por corrupção contra o presidente da República, Michel Temer, outras comissões aprovaram matérias importantes em diversos setores.

Further to our update in November 2014, there has been a further decision in relation to Fairfield Sentry Limited, the largest feeder fund that invested into the fraudulent Bernard L. Madoff Investment Securities.

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").

Fund investors and the fund industry globally should take note of the recent decision of the Eastern Caribbean Supreme Court Appellate Division’s (the “Court of Appeal”) in Madoff related litigation.  Essentially the Court of Appeal found that monies could not be recovered from former investors by the liquidators of Fairfield Sentry Limited (“Fairfield”) a BVI investment fund and investor in Bernard L Madoff Investments Securities limited (“BLMIS”), where those investors had redeemed their shares for significant value before BLMIS collapsed.. 

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.

Redemption of shares and consideration
Discounted valuation
Restoration
Finality of foreign judgments

Redemption of shares and consideration

In McGoey (Re), 2019 ONSC 80, Justice Penny of the Ontario Superior Court of Justice found trusts over two properties held by a bankrupt were void as shams. In his decision, Justice Penny noted that had he not found the trusts to be sham trusts, he would still have set them aside as fraudulent conveyances, making us ask: “what is the difference between a sham trust and a fraudulent conveyance?”

In Water Matrix Inc. v Carnevale, Justice Sanfilippo found that a consent judgment may survive bankruptcy if it arises from a claim that is based in fraud. This allowed a company that was defrauded by a former employee to continue to enforce the company’s judgment after bankruptcy.

Background