BERMUDA

BRITISH VIRGIN ISLANDS

CAYMAN ISLANDS

APRIL 2015 – DECEMBER 2015

ISSUE NO. 1 1

BERMUDA BRITISH VIRGIN ISLANDS CAYMAN ISLANDS DUBAI HONG KONG LONDON MAURITIUS SINGAPORE / conyersdill.com

OFFSHORE CASE DIGEST

2

Editor

Bermuda Christian R. Luthi

Assistant Editor

Bermuda Stephanie Hanson

Contributors

Bermuda Ben Adamson Scott Pearman

British Virgin Islands Tameka Davis

Cayman Islands Paul Smith Erik Bodden

Hong Kong Nigel K. Meeson, QC Norman Hau

This update is not intended to be a substitute for legal advice or a legal opinion.

It deals in broad terms only and is intended to merely provide a brief overview

and give general information.

BERMUDA | BRITISH VIRGIN ISLANDS | CAYMAN ISLANDS

About Conyers Dill & PearmanFounded in 1928, Conyers Dill & Pearman is an international law firm advising on the laws of Bermuda, the British Virgin Islands, the Cayman Islands and Mauritius. With a global network that includes 130 lawyers spanning eight offices worldwide, Conyers provides responsive, sophisticated, solution-driven legal advice to clients seeking our expertise on corporate and commercial, litigation, restructuring and insolvency, and private client and trust matters. Conyers is affiliated with the Codan group of companies, which provides a range of trust, corporate secretarial, accounting and management services.

3

This update is not intended to be a substitute for legal advice or a legal opinion.

It deals in broad terms only and is intended to merely provide a brief overview

and give general information.

3 / conyersdill.com

The Offshore Case Digest offers readers a high level summary of the major commercial cases decided in Bermuda, the British Virgin Islands and the Cayman Islands between April 2015 and December 2015. Our goal is to provide a useful reference tool for clients and practitioners who are interested in the development of case law in each jurisdiction.

ABOUT THE DIGEST

We would welcome any feedback and suggestions from readers on the content. If you would like to obtain further information on any of the cases, feel free to contact any of the Conyers Dill & Pearman litigation team.

JURISDICTION PAGE

Bermuda 2

British Virgin Islands 6

Cayman Islands 12

2

BERMUDA

BERMUDABERMUDA

SUPREME COURT

SHARE TRANSFER - INJUNCTION TO RESTRAIN COMPANY FROM HOLDING SPECIAL GENERAL MEETING TO ADOPT AMENDED BYE-LAWS - PRE-EMPTION RIGHTS

M Pulido -v- UST Holdings Ltd et al [2015] SC (Bda) 67 Com (25 September 2015)

A transferee of shares who has not yet been registered on the share

register of the company does not have standing to obtain interim relief

prohibiting an impugned meeting. Hellman J found that a transfer of

shares who contended that they were the legal owner of 50,000

shares in UST Holdings Ltd (the “Company”), but who had not yet been

entered on the company register, did not have standing to seek

injunctive relief to prevent a resolution being put to the members of

the Company to adopt restated bye-laws in full substitution for the

Company’s existing bye-laws.

Under the new proposed bye-laws, the Company could refuse to

register the Plaintiff as a shareholder without giving any reason. The

Transferee strongly suspected one of the purposes of restating the

bye-laws was to allow the Company to prevent him from becoming a

member.

It was held that a company is not bound to recognise trusts of shares;

the company can only look to the man whose name is upon the

register. A company is not obliged to recognise a person claiming title

to shares as transferee until an instrument of transfer in the prescribed

form has been submitted for registration and has been registered. The

Company could consider the restatement of the bye-laws without

regard to the Transferee’s beneficial interest. The material distinction

was held to be not between legal and beneficial ownership, but

between members and non-members. Only members have standing to

challenge a proposed restatement of a company’s bye-laws in the

courts.

CONFIDENTIALITY IN TRUST PROCEEDINGS - SECTION 47 OF THE TRUSTEE ACT - PRIVACY OF BENEFICIARIES

BCD Trust [2015] SC (Bda) 83 Civ

Confidentiality in trust proceedings, especially non-contentious

proceedings, can be a pressing issue for trustees. Trustees sometimes

need to obtain the guidance of the Bermuda Court, or the exercise of

the Court’s broad powers under Section 47 of Bermuda’s Trustee Act,

on entirely non-contentious issues. The trustees may not, however,

want undue press attention placed on the beneficiaries. Trustees may

avoid seeking the assistance of the Court if, by doing so, they might

undermine their beneficiaries’ privacy. For this reason, trustees often

seek confidentiality orders, which typically provide that the names of

3

BERMUDA

the parties involved can be anonymised in the cause book, for the

hearing to be heard in private and for subsequent access to court files

by the public to be restricted.

Confidentiality, however, is increasingly hard to find in modern courts.

The courts continually trend towards ever greater transparency. While

non-contentious trust actions were, in the past, heard in chambers

(which meant members of the public and the press were in practice,

left outside), chambers hearings are now held in court rooms to which

the public have ready access. Further, due to recent procedural

reforms in Bermuda, court papers held in the Registry are increasingly

open to public and media scrutiny.

Thus, confidentiality orders are in increasing demand. They can,

however, be hard to obtain. In England for example, such orders, even

in non-contentious matters, are treated as exceptional and only

granted on the basis of cogent evidence of need (V -v- T [2014]

EWHC 3432 (Ch) Civ). This effectively means that trustees must show

evidence of a security risk or dangers such as ‘false friends’ latching on

to minor beneficiaries.

In BCD Trust [2015] SC (Bda) 83 Civ, Kawaley CJ in an ex tempore

ruling adopted a liberal and pragmatic approach. The Chief Justice

emphasised that the Bermuda Constitution specifically permits the

Courts to hold hearings in private if it considers it necessary or

expedient for the protection of the private lives of the persons

concerned in the proceedings. He also commented that, in the

absence of any obvious public interest in knowing about internal trust

administration, it was in the public interest to deal with non-

contentious trust applications as private hearings.

Trustees who wish to obtain the Court’s guidance, while protecting the

privacy of the beneficiaries, can be confident that their privacy will be

protected.

COMPANY LAW - SHAREHOLDERS - TEST FOR UNFAIR PREJUDICE - APPLICATION TO PUBLIC COMPANIES

Annuity & Life -v- Kingboard [2015] (Bda) LR 97

Shareholders who believe that they are being treated unfairly have

several remedies. One of the most effective can be an unfair prejudice

petition. Such petitions were historically rare in Bermuda, not least

because the hurdle is a high one. A petitioner must not only show that

its interests (as shareholder) have been unfairly prejudiced. It must

also show that the prejudice is so bad that it would justify the winding

up of the company on just and equitable grounds.

In Annuity & Life -v- Kingboard [2015] (Bda) LR 97, Kawaley CJ found

that this test had been met. What makes the case particularly notable

is that Kingboard is a company publically listed on the Singapore

Stock Exchange.

The shareholder’s allegations in Kingboard were two-fold. The first

allegation was that Kingboard had intentionally depressed its own

profitability. The Claim was that Kingboard, which produced copper

foil and sold it to affiliated companies, had been selling its copper foil

at an under-value. Shareholders in Kingboard, it was claimed, suffered

at the expense of shareholders in the affiliated companies. The

second allegation was that, when minority shareholders raised these

allegations and blocked Kingboard’s ability to sell its copper foil to

affiliates, as they had the power to do, Kingboard’s reaction had been

unreasonable. (Kingboard’s reaction had been to cease producing

copper foil altogether, instead licensing its production facilities to a

third party. The third party then proceeded to supply copper foil to

the same affiliates).

Much of the trial was taken up with the allegations of transfer pricing

and allegations as to whether or not the licensing arrangement was a

sham. Ultimately, Kawaley CJ rejected the transfer pricing allegations

in their entirety and also rejected the Claim that the license

arrangement was a form of sham. He did, however, find that

Kingboard’s reaction (ceasing all production of copper foil) to the

minority shareholders’ concerns about transfer pricing had been

unreasonable and “a visible departure from the standards of fair

dealing”. He concluded that the test for unfair prejudice had been met

and that the remedy was for the majority shareholders to purchase

the petitioner’s shares at a price to be assessed.

Both sides are appealing the Judgment and any appeal will likely not

be heard until 2017. However, the Kingboard decision shows the

power of the unfair prejudice petition and that it applies equally to

publicly listed companies as to private.

INTERNATIONAL COOPERATION (TAX INFORMATION EXCHANGE AGREEMENTS) ACT, 2005 (THE “2005 ACT”) - CONTEMPT - COSTS

Minister of Finance -v- A Company [2015] SC (Bda) 51 Civ (24 July 2015)

The Plaintiff alleged that the Defendant Company had failed to comply

with a Production Order made under the 2005 Act. It was common

ground that, by the date of the hearing, the Company had in fact

complied; the Plaintiff therefore sought the imposition of a fine.

4

BERMUDA

The Company denied that it had in fact breached the Order, and sought

an Order that each party bear its own costs. The Company asserted that

it had only been required to disclose documents that were in existence

and were in its custody, and also that it was only required to disclose

documents it considered relevant. The Court held that the wide

definition of “document” as held in Derby & Co Ltd -v- Weldon (No.9)

[1991] WLR 652 applied to Production Orders under the Act. The Court

also held that the scope of ‘information’, which may be requested and

made the subject of a Production Order under the 2005 Act, is much

broader than particular documents, as may be requested in foreign

judicial proceedings. As to relevance, the Court held that it is a matter for

the Court, not for the Company or its legal advisors to determine. If the

Company believed that some documents were irrelevant, or the Order

overly burdensome, it should have applied to Court to vary the Order.

The Court applied principles from an earlier Bermuda case, namely Joliet

2010 Ltd -v- Goji Ltd [2012] (Bda) Lr 75. The Court held that the terms of

the Production Order were clear, certain and unambiguous. The Court

was satisfied that the Company was in breach of the Production Order.

However, as the Company had substantially complied with the Order,

albeit belatedly, the interests of justice did not require any consideration

of whether the breaches were deliberate. As the Plaintiff had been the,

de facto, successful party, the Company was ordered to pay its costs.

The Court reaffirmed that it was in the public’s interest that Bermuda

comply with its obligations under Tax Information Exchange

Agreements, in a timely manner, to enhance its reputation in the sphere

of international tax enforcement.

DISCLOSURE OF DOCUMENTS USED BY TRUSTEE IN BEDDOE PROCEEDINGS - USE OF DOCUMENTS OUTSIDE OF BEDDOE PROCEEDINGS - APPLICATION TO VARY CONFIDENTIALITY ORDER

Trustee N and Others -v- The Attorney General and Others [2015] SC (Bda) 50 Com (13 July 2015)

At the outset of the Beddoe proceedings the Plaintiff Trustee obtained

a Confidentiality Order as is necessary to protect the information

being disclosed in the proceedings. The Trustee then filed a number of

affidavits in the proceedings and provided very considerable

disclosure.

The Second Defendant applied to discharge or vary the Confidentiality

Order so as to grant him leave to use a number of specified

documents for the purpose of other proceedings (“the Main Action”).

The Second Defendant asserted that the documents were relevant to

the pleaded causes of action in the Main Action, and would also

disclose new causes of action in the Main Action, and new causes of

action in relation to different trusts.

The traditional view, set out in Midland Bank Trust Co -v- Green [1980]

Ch. 590, was that no obligation to disclose arose, as the documents

were obtained in confidential proceedings. However, the Court noted

that a general principle had developed, that a claimant in a main

action should be permitted to participate in the Beddoe hearing as

fully as reasonably practicable.

In this case, the Confidentiality Order protected the specified

documents in any event. However, in the absence of the

Confidentiality Order, as the specified documents were not privileged

and did not disclose the Trustee’s view of the strengths or weaknesses

in the Main Action, if the Trustee wished to rely on the specified

documents, they ought to have been disclosed.

The Court also held that the purpose of a Beddoe application is to

allow the Trustees to obtain guidance from the Court, not to provide a

hostile litigant with ammunition. It was this purpose that underpinned

the Confidentiality Order. The Second Defendant got to see material

that he would not otherwise have seen (at least until discovery, if at

all). But the disclosure of that material in the Beddoe proceedings was

on condition that it could not be used for any other purpose.

It was an important consideration that the Trustee had applied for and

obtained the Confidentiality Order, and that the Second Defendant

had not sought to vary it until after the documents had been

disclosed.

The Court considered that the use of documents following disclosure

in Beddoe proceedings was analogous to the implied undertaking

given in civil disclosure generally, although it will be a more onerous

task to obtain leave to use documents obtained in Beddoe

proceedings, as there are strong policy reasons militating against

disclosure.

The Court, therefore, applied a two-limb test. Firstly, whether there

were special circumstances, meaning cogent reasons for disclosure,

that were particular to the facts of the case, which would not normally

be present in other cases, as opposed to particular examples of

generic reasons, which might apply to many cases. Secondly, whether

such disclosure would cause injustice to the disclosing party (in this

case, the Trustees).

Applying that test, the Court found that the reasons given by the

Second Defendant were examples of generic reasons which might

5

BERMUDA

apply to many cases, and as such did not amount to special

circumstances.

The Court went on to hold that the Second Defendant should receive

material that would, in fact, be discoverable in the Main Action in any

event. It was held that there was no specific prejudice to the Trustee

from this early disclosure, and, if the Second Defendant was then to

amend the pleadings in the Main Action, he could do so now, rather

than having to wait until after disclosure. However, the Court stated

that it would be wrong to waive or dilute the requirement of special

circumstances for the sake of good case management. The

application for leave to use the specified documents for purposes

other than the Beddoe proceedings was therefore dismissed.

CONTRACT - ENTITLEMENT TO FEES - UNJUST ENRICHMENT - MISTAKE

Kingate Global Fund Limited (In Liquidation) and Others -v- Kingate Management Limited and Others [2015] SC (Bda) 65 (25 September 2015)

The Plaintiffs were ‘feeder funds’ for the Bernard L. Madoff Investment

Securities LLC (“BLMIS”). As a result of the Ponzi scheme run by Mr.

Madoff, the Plaintiff Funds collapsed and were placed in liquidation.

The Plaintiffs had paid management fees to the First Defendant

(“KML”). The Defendants sought the determination of a preliminary

issue, being whether the fees actually paid were in fact payable under

the various management agreements and, if so, whether the Plaintiffs

were able to assert a claim in unjust enrichment against KML and the

other Defendants. The preliminary issue was brought about following

the decision of the Privy Council in Fairfield Sentry Ltd -v- Migani &

Others [2014] 1 CLC 611.

The management agreements provided that the management fees

would be calculated by reference to the Net Asset Value (“NAV”) of

the Plaintiffs calculated by the Administrators. The NAV was also used

to determine the subscription and redemption prices for investors

and, in the absence of bad faith or manifest error, the NAV calculation

was binding as between the Plaintiffs and investors.

The Plaintiffs alleged that as a result of the fraud committed by

Madoff, the NAV calculations were massively overstated and the

management fees were mistakenly overpaid. KML asserted that it was

contractually entitled to the fees as calculated by the Administrator

and that the NAV was binding between the Plaintiffs and KML. The

Plaintiffs’ response was that in calculating the amount, the

Administrator made a manifest error. The Plaintiff also asserted that in

practice the calculation was not carried out by the Administrator.

The Court held that in the absence of bad faith or manifest error, the

NAV, as calculated by the Administrator, was binding as between the

Plaintiff and KML for the purpose of calculating the management

fees. The Court also held that the calculation of the NAV was

undertaken by the Administrator and that, in the absence of bad faith

or manifest error, the management fees were properly due to KML

pursuant to the management agreements. A consequence of the

receipt of the fees, pursuant to a valid contract, is that the receipt

could not be unjust for the purpose of unjust enrichment and any

mistake was not such as to avoid the management agreement.

However, the Court did find that, if the mistake on the part of the

Plaintiff was induced by the Defendants, then such inducement would

negate the right to rely on the contract. Thus, the right to payment

under the contract would not be a defence to the Claim for unjust

enrichment for those sums in excess of the true NAV. No findings of

fact were made, however, as to whether there was such an

inducement.

In regards to the ‘bad faith’ or ‘manifest error’, it was held that the

impropriety of Madoff did not transfer to the Administrators so as to

render the NAV calculation invalid. It was only the bad faith or

manifest error of the Administrators themselves that was relevant.

The Court was asked to consider whether, if the facts are found in the

Plaintiffs’ favour, they would amount to manifest error. The Plaintiffs

argued that the Administrator should have spotted certain errors,

which included ignoring or failing to consider and address

inconsistencies in the information provided by Bernard L. Madoff

Investment Securities LLC. The Court was not required to resolve the

disputes of fact, but held that if the facts were as the Plaintiff

asserted, the Administrator may have made a manifest error.

The Judge concluded by noting that in order for the Plaintiff to

succeed in a claim based on mistake, they must first establish fault on

the part of the Administrator or KML.

6

BRITISH VIRGIN ISLANDSBRITISH VIRGIN ISLANDS

COURT OF APPEAL

INTERLOCUTORY APPEAL - CIVIL PROCEDURE RULES - SETTING ASIDE DEFAULT JUDGMENT - WHETHER A PERSON CAN BRING A CLAIM IN HIS OR HER BUSINESS NAME AND OBTAIN A DEFAULT JUDGMENT

Deidre Pigott Edgecombe and Nordel Edgecombe -v- Antigua Flight Training Centre Claim No. ANUHCVAP2015/0005 (June 2015)

This Appeal was against the decision of the Court below to refuse to

set aside judgment obtained in default on the ground that there were

exceptional circumstances. The Appellant contended that because the

Claim was commenced in the name of an entity that was not a legal

person the Judgment obtained was contrary to law because the

Respondent, not being a juristic person, could not be a party to and

obtain judgment in respect of the Claim.

The Appeal was heard on paper before the full panel. Dismissing the

Appeal, the Court held that Civil Procedure Rules (“CPR”) 22.2 (b)(iii)

allows a person to bring a claim if they were carrying on business in

the jurisdiction when the right to claim arose, as “X.Y.” followed by the

words “a trading name”. The Court found that this case fell within that

Rule and the omission of the words “a trading name” would not

render the Claim bad in law and in any event could be rectified by an

amendment of the Claim. The Court further held that the Claim could

be brought in the business name (although not a corporate entity at

the time) since CPR 22.2(2) provides for a Claim to be made by or

against a person in his or her business name and that the rules

regarding claims by or against partners apply as if that person had

been a partner in a firm when the right to claim arose and the

business name were the firm’s name.

Although the Appeal was concerned with whether the Appellant had

shown that exceptional circumstances existed in the context of a set

aside application, the Court of Appeal observed that since the

Appellant’s complaint was that the Judgment should be considered a

nullity or one which was irregular that the true appeal was to the

Court’s inherent jurisdiction to set aside the Judgment ex debito

justitiae. Even then, the Court found that the Appellant’s complaint did

not warrant the exercise of the Court’s inherent jurisdiction.

BRITISH VIRGIN ISLANDS

7

BRITISH VIRGIN ISLANDS

INTERLOCUTORY APPEAL - DEFAMATION - LIBEL - CIVIL PROCEDURE AMENDMENT TO STATEMENT OF CASE AFTER FILING - RULE 20.1 OF THE ENGLISH CIVIL PROCEDURE RULES, 2000 - FACTORS TO BE TAKEN INTO ACCOUNT IN DECIDING WHETHER OR NOT TO ALLOW AMENDMENT TO STATEMENT OF CASE AFTER DATE FIXED BY COURT FOR FIRST CASE MANAGEMENT CONFERENCE - LEAVE TO AMEND DEFENCE TO INCLUDE ADDITIONAL DEFENCE OF JUSTIFICATION

Mark Brantley -v- Dwight C. Cozier Claim No. SKBHCAP 2014/0027

This Appeal was against the decision of the Court below refusing

permission to the Appellant, Mark Brantley to amend his defence and

refusing his application for a stay of the proceedings pending the

determination of unrelated proceedings in the Court of Appeal. The

amendment was sought four years after the Claim was issued.

Applying the decisions in Charlesworth -v- Relay Roads Ltd. and

Others [2000] 1 WLR 230, Clarapede & Co. -v- Commercial Union

Association (1883) 32 WR 262 and George Allert (Administrator of the

Estate of George Gordon Matheson, deceased) et al -v- Joshua

Matheson et al GDAHCVAP2014/0007 (delivered 24 November 2014,

unreported), the Court held that in exercising its discretion in relation

to amendments the Court should be guided by the general principle

that amendments should be made where they are necessary to ensure

that the real question in controversy between the parties is

determined, provided that such amendments could be made without

causing injustice to the other party and could be compensated in

costs. The Court further held that the amendment should be allowed

regardless of how negligent or careless the omission from the

statement of case may have been, and no matter how late the

proposed amendment was.

CIVIL APPEAL - SETTING ASIDE STATUTORY DEMAND - SECTION 157(1) AND SECTION 157(2) OF THE INSOLVENCY ACT, 2003 - WHETHER STATUTORY DEMAND CONTRARY TO ARBITRATION CLAUSE IN CONTRACT - WHETHER THE RESPONDENT WAS BARRED BY THE CONVENTION ON THE LIMITATION PERIOD IN THE INTERNATIONAL SALE OF GOODS (NEW YORK, 1974).

C-Mobile Services Limited -v- Huawei Technologies Co Limited Claim No. BVIHCMAP 2014/0006 (September 2015)

This Appeal concerned the decision by the Court below to refuse the

Appellant’s application to set aside the service of a statutory demand

on it. The Appellant relying on Section 157(1) of the Insolvency Act,

2003 (the “Insolvency Act”), sought to set aside the statutory demand

on various grounds, which it was alleged amounted to there being a

substantial dispute as to the debt.

Dismissing the Appeal, the Court held that while Section 157(2) of the

Insolvency Act gives the Court a discretionary power, Section 157(1)

did not. Moreover, to exercise the discretion given under Subsection

(2) the Applicant would need to adduce evidence showing that a

“substantial injustice would be caused”, unless the demand was set

aside, this had not been done. The Court held that the test for

determining whether there was a substantial dispute as to a debt was

as set out in Sparkasse Bregenz Bank AG -v- Associated Capital

Corporation Appeal 10 of 2002, an earlier decision of the BVI Court of

Appeal. The Court also found that since the application to set aside

had not been made under Section 157(2) of the Insolvency Act, the

Learned Judge was not being asked to exercise a discretion.

Accordingly, if having examined the evidence, he was of the view that

a substantial dispute (as distinct from a fanciful or make-believe or

mere trifling or frivolous one) existed, he was bound to set aside the

statutory demand.

CIVIL APPEAL - ARBITRATION - STAY PURSUANT TO SECTION 6(2) OF THE ARBITRATION ORDINANCE - APPLICATION FOR APPOINTMENT OF LIQUIDATORS - WHETHER ARBITRATION CLAUSE IN CONTRACT BROUGHT THE LIQUIDATION PROCEEDINGS WITHIN THE AMBIT OF SECTION 6(2) OF THE ARBITRATION ORDINANCE

C-Mobile Services Limited -v- Huawei Technologies Co Limited Claim No. BVIHCMAP 2014/0017 (September 2015)

Here, the issue on appeal was whether the application to appoint

liquidators should be stayed pursuant to Section 6(2) of the

Arbitration ordinance, where the agreement under which the

underlying debt arose contained an arbitration clause. The Court of

Appeal dismissing the Appeal held, applying Re Sanpete Builders (S)

Pte. Ltd [1989] 1 MLJ and Community Development Proprietary Ltd

-v- Engwirda Construction Co. (1969) 120 CLR 455, that, as a starting

point, the winding up proceedings were not intended to be caught

within the ambit of the mandatory stay provisions contained in the

Arbitration Ordinance unless the Arbitration Agreement itself was so

drawn to encompass such a proceeding. The Court found that under

the Arbitration Clause of the agreement it was only matters “arising

out of or in connection with the formation, construction, or

performance of” the contract that was required to be referred to

arbitration and that these winding up proceedings were outside the

stay provisions of the Arbitration Act.

8

CIVIL APPEAL - EX PARTE HEARING - COURT’S COSTS JURISDICTION - CIVIL PROCEDURE RULES - SERVICE OUT OF JURISDICTION OF NON-PARTY COSTS APPLICATION - WHETHER JUDGE ERRED IN DISMISSING APPLICATION TO SERVE PARTY OUT OF THE JURISDICTION - RULE 7.3 OF THE ENGLISH CIVIL PROCEDURE RULES, 2000 - RULE 7.14 OF THE ENGLISH CIVIL PROCEDURE RULES, 2000 - SECTION 11 OF THE EASTERN CARIBBEAN SUPREME COURT (TERRITORY OF THE VIRGIN ISLANDS) ACT

Halliwell Assets Inc et al -v- Hornbean Corporation Claim No. BVIHCMAP 2014/0017 (October 2015)

The Appellants were granted costs orders against the Respondent,

Hornbeam Corporation and by notice of application sought a third

party costs Order against Mr. Shulman. Mr. Schulman was not a party

to the Claim and is a foreigner. This Appeal is against the decision of

the Learned Judge below to grant permission to serve the application

notice out of the jurisdiction on Re Shulman. The Court of Appeal held

that although Rule 7.3(10) (on service of a claim where jurisdiction was

provided for by an enactment) did not apply to an application for third

party costs, it was fairly arguable that Rule 7.14 could provide the Court

with the requisite jurisdiction to serve the application out of the

jurisdiction if Mr. Schulman could be successfully joined to it and the

Claim would qualify for service out of the jurisdiction.

While recognising that at first blush Rule 7.14 did not appear to be

limited to parties who were already parties to an action and after

examining the relevant English authorities, which construed similar

provisions under the English Civil Procedure Rules, the Court of Appeal

recognised that service out of the jurisdiction of an application under

Rule 7.14 was not permissible without more and it was necessary to

show that the proceedings in which the application was issued would

be one which would qualify for service out under one of the gateways

contained in Rule 7.3.

The Court found that the appropriate course would be for the Court to

consider the joinder application and to determine it, on its merits,

along with the non-party costs application and permissions to serve

out. The Appeal was allowed and the matter remitted to the Court

below.

CIVIL APPEAL - TRUST DEED - DISCRETIONARY TRUSTS - DEED OF APPOINTMENT - POWER OF APPOINTMENT UNDER TRUST - WHETHER POWER OF APPOINTMENT IN TRUST DEED PERMITS TRUSTEE TO EXCLUDE A NAMED BENEFICIARY FROM THE OBJECTS OF A DISCRETIONARY TRUST IN ADVANCE OF APPOINTING CAPITAL TO OTHER NAMED BENEFICIARIES

Re: Royal Fiduciary Group Limited Claim No. BVIHCMAP 2013/0022

This is an Appeal against the Learned Judge’s refusal to sanction the

terms of a draft deed of appointment, the effect of which would be to

disentitle the Settlor from benefiting under the trust deed, on the

basis, inter alia, that the Trustee had no power to vary the Trust deed

as contemplated by the draft deed of appointment and would be a

nullity.

In allowing the Appeal and granting the declarations sought in the

Court below, the Court held applying Muir -v- Inland Revenue

Commissioners [1966] 1 WLR 1269 and Blausten -v- Inland Revenue

Commissioners [1972] Ch. 256 that a trustee, in the absence of any

contrary indication and in the face of a power of appointment in the

Trust deed authorising the Trustee to appoint property among

beneficiaries could validly appoint property among two or more

objects of the Trust while excluding altogether one or more objects.

The Court, after examining the facts of the case, primarily the

justification for the intended variation, found that it could “see no

reason based on principle, in terms of the powers of trustees in the

exercise of powers of appointment under a trust deed, why the trustee

in this case could not properly exercise the power of appointment

conferred on him by the trust instrument in excluding the settlor from

benefiting under the trust, with the resulting increase in the property

interests available for distribution to the children and remoter issue of

the settlor, who are obviously the intended beneficiaries of the settlor’s

benefaction”.

BRITISH VIRGIN ISLANDS

9

BRITISH VIRGIN ISLANDS

both complex and defended, did not predispose themselves to a

cursory review and required the Court to evaluate the evidence before

it and the arguments advanced by both parties in order to determine

“whether the proceedings are likely to succeed”.

However, having exercised its discretion afresh, the Court held that the

evidence did not show that the proceedings were likely to succeed

and dismissed the Appeal on that basis.

INTERLOCUTORY APPEAL - CIVIL PROCEDURE RULES - APPELLANTS’ DEFENCE STRUCK OUT IN COURT BELOW BY LEARNED JUDGE FOR NON-COMPLIANCE WITH PREVIOUS ORDER OF COURT WHICH REQUIRED THAT COSTS BE PAID PRIOR TO LATE FILING OF DEFENCE - JUDGMENT ENTERED FOR RESPONDENT IN HER ABSENCE - WHETHER LEARNED JUDGE ERRED IN STRIKING OUT APPELLANTS’ DEFENCE AND ENTERING JUDGMENT FOR RESPONDENT IN HER ABSENCE - WHETHER STRIKING OUT OF DEFENCE AND ENTRY OF JUDGMENT BY LEARNED JUDGE WAS CONTRARY TO CIVIL PROCEDURE RULES (“CPR”) 27.2(3) AND RULES OF NATURAL JUSTICE

Agnes Danzie et al -v- Cecil Anthony Claim No. SLUHCVAP 2015/0009 (December 2015)

This Appeal is against the decision of the Court below to strike out a

defence following the failure by the Respondent to satisfy an Order

that costs be paid prior to the filing of its defence, and to enter

summary judgment in the Respondent’s absence without taking

evidence.

In allowing the Appeal, the Court of Appeal held that while Civil

Procedure Rule (“CPR”) 26.3(1)(a) gave the Court a discretion to strike

out a statement of case or part of one where it appears to the Court

that there has been a failure to comply with a rule, practice direction,

order or direction given by the Court in the proceedings, it is a

well-established principle that this power should only be used

sparingly. The Court further held that in exercising his discretion, the

Learned Judge was required to consider what was the appropriate

response having regard to all of the circumstances, including whether

there were other alternatives available that would be just in the

circumstances and that having regard to the very wide case

management powers of a Judge, striking out the Appellants’ defence

was not an appropriate response to the breach of the order of the

Learned Judge by the Appellants. (Real Time Systems Limited -v-

Renraw Investments Limited and Others [2014] UKPC 6 applied).

INTERLOCUTORY APPEAL - DERIVATIVE PROCEEDINGS - INTERPRETATION OF SECTION 184C(2)(C) OF BVI BUSINESS COMPANIES ACT, 2004 (AS AMENDED) - MEANING OF ‘LIKELY’ IN WORDING ‘WHETHER THE PROCEEDINGS ARE LIKELY TO SUCCEED’ - APPEAL AGAINST FINDINGS OF FACT MADE BY LEARNED JUDGE

Basab Inc. -v- Accufit Investment Inc. and Double Key International Limited Claim No. BVI HCMAP 2014/0020(November 2015)

The Appeal concerns the refusal by the Court to grant leave to the

Appellant pursuant to Section 184C(2)(c) of the BVI Business

Companies Act, 2004 (as amended) (the “BCA”) to commence

derivative proceedings on behalf of the first Respondent, for what it

contends was the sale at an undervalue of the shares in its wholly

owned subsidiary.

The Learned Judge’s refusal was based on his Judgment that the

intention and effect of Section 184C(2)(c), was that for a claim to be

”likely to succeed” it must be obvious, without any substantial

consideration of or debate on the merits that it is likely to succeed and

the proposed Claim must appear to the Court to be self-evidently

strong without conducting an inquiry. He observed the application for

leave under Section 184C was not an occasion for painstaking analysis

of valuation or other evidence and based on a limited examination of

the evidence found that the Appellant’s Claim was not likely to

succeed.

The Court of Appeal dismissed the Appeal. They found that the

Learned Judge’s interpretation and application of Section 184C(2)(c)

of the BCA was wrong because it seemed to be moving into the realm

of requiring a strong likelihood or almost requiring certainty that the

proceedings would succeed. Applying the case of Cream Holdings

Limited and Others -v- Banjeree and Others [2004] UKHL 44, the

Court found that the correct meaning of the phrase “whether the

proceedings are likely to succeed” in Section 184C(2)(c) of the BCA

was “whether it is more probable than not that the proceedings will

succeed”. The Applicant was therefore not required to demonstrate

that success was an absolute certainty, or that the probability of

success was very strong. The Court further held that with regard to

the level of examination of the evidence required in the present case,

the threshold for the grant of leave to bring derivative proceedings –

“whether it is more probable than not that the proceedings will

succeed” – would require a full and proper examination of the

evidence then before the Court. The Court further held that the

potential nature of derivative claims, especially those that may be

10

that there was no basis in law or as a matter of discretion for the

Judge to grant a stay pursuant to Rule 56.4(8).

As it related to injunctive relief, the Court held applying Regina -v-

Secretary of State for Transport, Ex parte Factortame Ltd. And Others

(No. 2) [1991] 1 AC 603 that when dealing with restraining a public

body, whether from enforcing the law or from performing their public

duties as required and contemplated by the law, the balance of

convenience must be looked at more widely by taking into account

the public interest in the performance of those responsibilities and

duties with which the public body is tasked and in seeking to arrive at

a just result in all the circumstances. The Court found that TRC should

not be restrained from undertaking and performing its duties in

serving the wider public interest and the balance of convenience was

not in CCT’s favour when considered in the wider context having

regard to what the TRC had sought to accomplish given its mandate

and that allowing the Spectrum Award 2015 process posed the least

risk of injustice.

INTERLOCUTORY APPEAL - LOAN AGREEMENT BETWEEN APPELLANT AND RESPONDENT - INTERPRETATION OF CLAUSES OF MEMORANDUM OF UNDERSTANDING - CONVERSION OF LOAN INTO EQUITY - APPOINTMENT OF LIQUIDATORS - WINDING UP - WHETHER APPELLANT BECAME SHAREHOLDER OF RESPONDENT BY IMPLIED AGREEMENT TO CONVERT LOAN TO EQUITY IN RESPONDENT OR WHETHER APPELLANT CONTINUED TO BE CREDITOR OF RESPONDENT AND WAS ENTITLED TO APPOINT LIQUIDATORS OF RESPONDENT - WHETHER LEARNED JUDGE ERRED IN STRIKING OUT APPELLANT’S APPLICATION TO WIND UP RESPONDENT ON JUST AND EQUITABLE GROUND - STANDING - ARBITRATION - EFFECT OF ARBITRATION

Jinpeng Group Limited -v- Peak Hotels and Resorts Limited Claim No. BVIHCMAP2014/0025

This was an Appeal against the decision of the Judge below to strike

out an application to appoint liquidators over the Respondent (the

“Application”) on just and equitable grounds. The Respondent applied

to strike out the Application on the grounds that the Appellant had

impliedly agreed to convert the loan which it had given to the

Respondent into equity and therefore was not a creditor and did not

have standing to apply for liquidators on the just and equitable

ground.

The Court below in striking out the Application and after carrying out

a very limited analysis on the nature of the dispute between the

parties, said that any challenge by the Respondent to the Appellants

In relation to the Summary Judgment hearing the Court of Appeal

held that while CPR 27.2(3) empowered the Court to treat the first

hearing as a trial of the Claim, and that trial could be dealt with

summarily, that doing so did not mean entering Summary Judgment.

The process contemplated by Rule 27.2 (3) required the Claimant to

prove its case and a trial conducted. The Respondent did not attend,

so the Court was wrong to enter judgment.

INTERLOCUTORY APPEAL - STAY OF SPECTRUM AWARD 2015 PROCESS - CIVIL PROCEDURE RULES - RULE 56.4(8) OF THE ENGLISH CIVIL PROCEDURE RULES, 2000 (the “ECPR”) - WHETHER A ‘STAY OF PROCEEDINGS’ UNDER ECPR 56.4(8) INCLUDES A STAY OF AN ADMINISTRATIVE DECISION OR PROCESS - EXERCISE OF JUDICIAL DISCRETION IN GRANTING INTERIM RELIEF - INTERIM INJUNCTION AGAINST PUBLIC BODY - ASSESSING WHERE BALANCE OF CONVENIENCE LIES - DETERMINING RISK OF INJUSTICE

Telecommunications Regulatory Commission -v- Caribbean Cellular Telephone Limited Claim No. BVIHCVAP 2015/0015 (December 2015)

This Appeal by the Telecommunications Regulatory Commission (the

“TRC”) was against the decision of the Judge below to stay the

implementation of the Spectrum Award, 2015 process. The Spectrum

Award Process as it was called by the TRC was the procedure to be

adopted for the allocation of spectrum under various bans to mobile

network operators in the BVI. The Respondent, Caribbean Cellular

Telephone Limited (“CCT”) was one such operator and successfully

obtained leave to make a Claim for judicial review of TRC’s conduct,

generally, including in relation to the Spectrum Award Process. The

Respondent also obtained a stay of the Spectrum Award Process

purportedly pursuant to Section 56.4(8) of the ECPR and applied for

interim injunctive relief. Injunctive relief was refused and the

Respondent cross-appealed in relation to same.

In allowing the Appeal and setting aside the stay of the Spectrum

Award 2015, the Court held following the decision in Ministry of

Foreign Affairs, Trade and Industry -v- Vehicles and Supplies Ltd [1991]

1 WLR 55 that the term “proceedings” as used in ECPR 56.4(8) was to

be confined to proceedings before a lower court or tribunal exercising

judicial or quasi-judicial functions and would not include an

administrative decision or action such as the decisions and actions of

the TRC. The Court also found that if the evidence (as it had done)

failed to meet the quality for the grant of injunctions, it would similarly

fail the test for the grant of a stay as the tests for satisfying either were

to be treated as essentially the same. Consequently, the Court found

BRITISH VIRGIN ISLANDS

11

BRITISH VIRGIN ISLANDS

decision to dismiss the Appellant’s application for permission to serve

the Claim out of the jurisdiction on the foreign defendants. The Court

dismissed the Appeal on the basis that on the alleged scheme taken

at its highest was nothing more than a failed investment in an illiquid

real estate development and did not have the trappings of a

conspiracy to deliberately deprive the Appellants of their investment.

However, the Court did find that the Learned Judge erred in finding

that the relationship of principal and agent between the Company and

its direct/sole shareholder defeated the allegation of conspiracy.

The Court of Appeal applying Belmont Finance Corporation Ltd.

-v- Williams Furniture Ltd. and Others [1979] Ch. 250 and Lim Leong

Huat -v- Chip Hup Hup Kee Construction Pte Ltd [2009] 2 SLR 318

that a director, even if he/she is the controlling mind of a company,

could combine with that company to injure a third party in

circumstances where the company was not the victim, but the

beneficiary of the conspiracy.

In so far, it concerned the application for service out of the jurisdiction

the Court of Appeal held that the Learned Judge was right in finding

that the BVI was not the appropriate forum for the trial of the

conspiracy claim notwithstanding that some of the alleged

conspirators were BVI companies because the Appellants and the

main parties to the alleged conspiracy were not resident in the BVI

and the events underlying the claims for breach of trust and

conspiracy all occurred in Singapore. (Nilon Limited and Another -v-

Royal Westminster Investments SA and Others [2015] UKPC 2

applied.)

standing, other than a hopeless one, would be sufficient to establish a

sufficient dispute for the purpose of removing the Appellant’s status

as a creditor. In setting aside the order striking out the Appellants

Application the Court held, inter alia, (i) following Sparkasse Bregenz

Bank AG -v- In the Matter of Associated Capital Corporation

BVIHCVAP2002/0010, that while the Learned Judge was correct to

observe that the winding up Court should not be used to resolve

disputes about debts or to decide issues of fact on a summary basis,

the Court had a duty to carry out a preliminary investigation of the

facts to determine whether a dispute that a debtor company raises in

relation to a debt in winding up proceedings is one which has been

raised on genuine and substantial grounds and thus he erred in failing

to apply the correct legal test in the circumstances, which was

whether the dispute raised by the Respondent, was one that was

raised on genuine and substantial grounds, (ii) notwithstanding that

the Application was presented by the Appellant as creditor on the just

and equitable grounds alleging misconduct, it was still a creditor’s

application and therefore, the applying creditor was seeking a

collective remedy on behalf of itself and all the other creditors of the

Respondent, accordingly this was not a Claim by the Appellant to

recover its debt from the Respondent Company and (iii) while the

arbitration clauses were designed to resolve disputes between the

contracting parties, once the Appellant had submitted its dispute to

the Court as the basis of a creditor’s winding up application, it became

an issue between the Respondent and its creditors over the

Company’s ability to pay its debts as they fall due and therefore fell

outside the scope of Section 18(1) of the Arbitration Act (i.e. the

Section which provides for a stay of arbitration proceedings).

INTERLOCUTORY APPEAL - CONSPIRACY - LAWFUL MEANS CONSPIRACY - INTENTION TO INJURE - AGENCY - LIABILITY OF DIRECTOR FOR CONSPIRACY TOGETHER WITH COMPANY OF WHICH HE/SHE IS DIRECTOR - WHETHER LEARNED JUDGE EXERCISED HIS DISCRETION IMPROPERLY - APPLICATION BY RESPONDENT TO STRIKE OUT APPELLANTS’ CLAIM IN COURT BELOW - APPLICATION BY RESPONDENT FOR SUMMARY JUDGMENT - APPLICABLE LEGAL TESTS - WHETHER BVI IS APPROPRIATE FORUM FOR TRIAL OF APPELLANTS’ CONSPIRACY CLAIM

Lin Chee Keen and Steven Ng -v- Fam Capital Management Limited Claim No. BVIHCMAP2015/0002 (December 2015)

This was an Appeal against the decision of the Learned Judge below

to strike out the Claim for conspiracy on the basis that a conspiracy

could not arise between a company and its sole controller and his

12

CAYMAN ISLANDSCAYMAN ISLANDS

COURT OF APPEAL

CAYMAN ISLANDS TAX INFORMATION AUTHORITY - REQUESTS FOR INFORMATION - AUSTRALIAN TAX INFORMATION EXCHANGE AGREEMENT

Cayman Islands Tax Information Authority -v- MH Investments and another CICA 31 of 2013 G391/2012 (31 July 2015)

In February 2011, the Australian Tax Office (the “ATO”) made a request

of the Cayman Islands Tax Information Authority (the “Authority”) for

information pursuant to Article 5 of the Australian Tax Information

Exchange Agreement. The request was in connection with an active

investigation into the Australian taxation affairs of Mr. Vanda Russell

Gould (“Mr. Gould”) and Mr. John Scott Leaver (“Mr. Leaver”). The ATO

had identified that Mr. Gould and Mr. Leaver and their respective

associated entities had made multiple transactions with offshore

entities registered in the Cayman Islands. The Cayman Islands entities

that were identified were J.A. Investments Limited (“JA”) and M.H.

Investments Limited (“MH”). The ATO was concerned that the

transactions represented attempts by the Australian residents to

evade tax properly payable in Australia by establishing offshore

arrangements. The ATO believed that Mr. Gould and/or Mr. Leaver

were the ultimate beneficial owners and controllers of JA and MH and

had omitted income and/or claimed deductions in their Australian tax

returns.

In April 2011, following the request from the ATO, the Authority issued

and served on FCM Limited (the registered agent of JA and MH) a

notice to produce the information required by the ATO. In order to

take this step, the Authority was taken to have determined: (i) that the

request was in compliance with the Australian Tax Information

Exchange Agreement and (ii) that the information was not required

for proceedings in Australia or for related investigations. FCM Limited

provided the information requested on 4 May 2011 and the Authority

forwarded this information to the ATO. The ATO sent a further request

for information on 27 May 2011 and the Authority sent to FCM Limited

two further notices to provide information. On 20 September 2011 the

Authority sent the information produced by FCM Limited to the ATO.

Further requests followed and on 19 October 2011, the ATO sent a

request seeking the Authority’s consent to disclose documents

obtained from FCM Limited relating to the Cayman Island entities to

HMRC in the United Kingdom. The ATO also requested consent to use

the documents obtained from FCM Limited in proceedings before the

Australian Federal Court, which were subsequently provided by the

Authority.

CAYMAN ISLANDS

13

CAYMAN ISLANDS

On 18 September 2012, JA and MH applied to the Grand Court for

judicial review of the decisions of the Authority. The relief sought was:

(i) a declaration that the decisions were ultra vires of the powers

granted to the Authority by the Law; (ii) an order of certiorari,

quashing of the decisions and (iii) an order that the Authority provide

JA and MH with copies of all documents which it held relating to the

requests.

Quin J made orders including, amongst others, an order of certiorari

quashing the decisions of the Authority and a declaration that the

decisions to comply with the requests from the ATO were unlawful

because the Authority had failed to apply to the Grand Court under

the relevant sections of the Tax Information Authority Law (the

“Law”).

The Authority appealed challenging the Judges finding that the

Respondents should have been served with notices of the requests

under Section 17(c) of the Law.

The Court of Appeal held that JA and MH were the subjects of the

requests and on that basis it was bound to find that decisions to

execute the requests without having served the Section 17(1) notices

on JA and MH were necessarily ultra vires and dismissed the Appeal.

It followed that the decisions to serve notices under Section 8(4)(b) of

the Law, requiring FCM Limited to provide information, were made

without taking into account material which the Law required that the

Authority should take into account; and that the Judge of first

instance was correct to conclude that those decisions should be set

aside.

GRAND COURT

DETERMINATION OF FAIR VALUE - SECTION 238(1) COMPANIES LAW - VALUATION ACTION - APPRAISAL ACTION

In the Matter of the Companies Law (2013 Revision) and In the Matter of Integra Group FSD 92 of 2014 (AJJ) (13-17 April and 26 May 2015)

This is the first time that the Court has considered the meaning of “fair

value” within Section 238(1) of the Companies Law (2013 Revision) (the

“Law”). A petition, being described as a “valuation action” or an

“appraisal action”, was presented by the Integra Group (the “Company”),

by which the Court was required to determine the fair value of its Class A

Common Shares in accordance with the provisions of Section 238(11) of

the Law.

Under Section 238, dissenting shareholders are not required to accept a

merger or consolidation agreement which has been approved by the

requisite majority. Instead, they are entitled to dissent and demand

payment for the fair value of their shares. Section 238(1) provides that:

“A member of a constituent company incorporated under this Law shall

be entitled to payment of fair value of his shares upon dissenting from a

merger or consolidation.”

The Company’s offer was not accepted by the dissenting Shareholders

and after the requisite period a petition was duly presented on 20

August 2014. The Court was therefore required, in accordance with

Section 238(11) of the Law, to determine fair value of the dissenting

Shareholders’ shares and to determine a fair rate of interest, if any, to be

paid by the Company upon the amount determined to be payable in

respect of the shares.

The Court held that the point, immediately before the merger decision

was made, was the appropriate valuation date (the “Valuation Date”).

The Court was therefore required to determine the fair value of the

Company’s business as a going concern at the point immediately before

the merger was approved, it further held that the fair value of the

dissenting Shareholders’ shares was held to be their proportionate share

of this amount without any minority discount or any premium for the

forcible taking of their shares.

Section 238 of the Law does not dictate any valuation methodology.

However, it is well established in both Canadian and Delaware

jurisprudence that fair value should be proved by techniques or methods

which are generally considered acceptable in the financial community

and are otherwise admissible in court. Two expert witnesses were used

in the case and it was generally accepted and agreed by the witnesses

that there are three main approaches to an appraisal exercise of the kind

that was required to be performed by the Court; the market approach,

the income approach and the cost (or asset based) approach.

The Court’s approach to the valuation of the Company was to combine

an income approach, using the discounted cash flow methodology (75%

weighting) with a market approach, using a guideline public company

methodology (25% weighting). It was concluded that the fair value of

the Company at the Valuation Date was US$105 million and the fair value

of the dissenting Shareholders’ shares at the Valuation Date was their

proportionate share of US$105 million (US$11.70 per share) without any

minority discount or premium for forcible taking.

By Section 238(11) the Court was also required to determine the fair

value “together with a fair rate of interest, if any, to be paid by the

14

Company upon the amount determined to be the fair value.” The Court

determined that a fair rate of interest would be the mid-rate between the

Company’s assumed return on cash (0.2%) and the Company’s assumed

USD borrowing rate (9.7%) being 4.95% per annum.

Costs of the proceedings were ordered at a later hearing and the

Company was ordered to pay the dissenting Shareholders’ costs, to be

taxed on a standard basis if not agreed.

PETITION STRUCK OUT AS ABUSE OF PROCESS - SECTION 95(3) COMPANIES LAW - AGREEEMENT NOT TO PRESENT WINDING UP PETITION

In the Matter of the Companies Law (2013 Revision) and in the Matter of the Exempted Limited Partnerships Law 2014 and in the Matter of Rhone Holdings, L.P. (12-13 August 2015)

Rhone Holdings, L.P. was a Cayman Islands exempted limited

partnership (the “Partnership”). The Petitioners, who were all limited

partners in the Partnership, filed a winding up petition on the just and

equitable ground, seeking to have the Partnership wound up in

accordance with the Companies Law (2013 Revision) (the “Law”) and

the Exempted Limited Partnership Law (2014 Revision) (the “ELPL”).

The Partnership had two general partners: Rhone Capital (GP) Ltd.

(“Capital GP”) which was controlled by the Petitioners, and Rhone

Holdings SLP, L.L.C. (“Holdings GP”) which, along with the Director of

Holdings GP, was one of the Respondents.

On the hearing of an, ex parte, application filed with the winding up

petition, the Court made, amongst other orders, an order appointing

joint provisional liquidators (“JPLs”) of the Partnership.

Following this, the Respondents filed a Summons seeking orders and

directions that the petition be struck out as an abuse of process; that

the Petitioners pay the Respondents costs occasioned by the Petition

on the indemnity basis; and that the costs of the JPLs be paid by the

Petitioners. The Honorable Justice Ingrid Mangatal delivered the

Judgment and made the orders sought by the Respondents in

substantially the same terms.

In reaching the decision, Mangatal J considered a number of clauses in

the Amended & Restated Limited Partnership Agreement. Clause 5.12,

which was particularly relevant to the issue in the case, read as follows:

5.12 Bankruptcy. The parties agree not to cause…the appointment of a

receiver, trustee, custodian, sequestrator, liquidator, administrator,

conservator, or similar official for the Partnership or Rhone II, or (b) the

Partnership or Rhone II to (1) voluntarily commence any proceeding or

file any petition seeking winding up, liquidation, dissolution,

reorganization or other relief under any bankruptcy, insolvency,

receivership or similar law of any jurisdiction now or hereafter in

effect…

After considering the relevant sections of the Law and the ELPL,

Mangatal J determined that if partners can agree that a partnership

can only be determinable by mutual agreement, they can also agree

not to present a winding up petition and, specifically in the case, not to

do any of the other matters set out in Clause 5.12 of the LPA.

Furthermore, there was no principle of public policy that was offended

by Clause 5.12; indeed Mangatal J discussed a number of reasons why

it is, in keeping with public policy, that limited partners are allowed to

enter into agreements regarding the duration of the limited

partnership as they think fit.

WINDING UP PETITION - APPLICATION BY SHAREHOLDERS TO STRIKE OUT PETITION ON GROUNDS DIRECTORS NOT AUTHORISED

In the Matter of China Shanshui Cement Group Limited (Unreported, 25 November 2015)

The Grand Court of the Cayman Islands confirmed, in a decision by

Mangatal J, that the directors of a company do not have statutory

authority to petition the Court to wind up the company (whether the

company is solvent or insolvent) without the sanction of a resolution

of shareholders, unless the articles of association of the company

expressly provide otherwise.

In this case a winding up petition, submitted by the directors of the

company, was struck out for lack of standing to file the petition. This

decision has re-affirmed the application in the Cayman Islands of the

English case of Re Emmadart Ltd [1979] 1 Ch. 540 in which Brightman

J had concluded that:

“The practice which seems to have grown up [in England], under which

a board of directors of an insolvent company presents a petition in the

name of the company where this seems to the board to be the sensible

course, but without reference to the shareholders, is in my judgment

wrong and ought no longer to be pursued, unless the articles confer

requisite authority…”.

The decision restores what was generally understood to have been the

position under Cayman Islands law until the position was impacted by

the first instance decision of Jones J in the Cayman Islands case of Re

China Milk Products Group Ltd [2011] 2 CILR 61 (“Re China Milk”). Jones

CAYMAN ISLANDS

15

CAYMAN ISLANDS

J (applying Section 94(2) of the Companies (Amendment) Law, 2007)

held, in 2011, that the Directors of an insolvent company are entitled to

present a winding up petition on behalf of a company without

reference to shareholders and irrespective of the terms of the

company’s articles.

Section 94(2), provides as follows:

“Where expressly provided for in the articles of association of a

company the directors of a company incorporated after the

commencement of the Law have the authority to present a winding up

petition on its behalf without the sanction of a resolution passed at a

general meeting”.

Jones J concluded that the Cayman Legislature must have intended

that Section 94(2) would only apply to solvent companies.

In this matter, Mangatal J declined to follow the Judgment of Jones J

in Re China Milk. Although the Company in Re China Shanshui Cement

was incorporated before 2009 (and hence Section 94(2) was found to

be irrelevant), Mangatal J concluded that:

“…whatever the intention of the Legislature may have been, all Section

94(2) did was to provide statutory confirmation that, as was previously

held in Re Emmadart, where the articles of association of a company

expressly authorise its directors to present a winding up petition on its

behalf, the directors do not also need to obtain the sanction of a

resolution passed in general meeting”.

The restriction on directors statutory authority to petition the Court to

wind up the company, as confirmed by the Re Emmadart case, has

been criticised (and reversed by statute in England) and not followed

in some Commonwealth countries. However, as a result of this

decision, it is now clear that the position in Re Emmadart does

represent the law in the Cayman Islands.

Editor’s note – The position in the Cayman Islands should be

contrasted with the postion in Bermuda where it has been held that

the directors will have standing to petition on behalf of an insolvent

company, provided that the bye-laws do not prohibit such an

application (see Re First Virginia Reinsurance Ltd. [2003] BLR 47).

This authority has been relied on in order to facilitate director

instigated petitions in numerous cases since.

APPARENT BIAS - JUDGES SITTING IN MULTIPLE JURISDICTIONS

Wael Almazeedi -v- BTU Power Company (in official liquidation) (Unreported, 20 November 2015)

This Appeal considered two important questions. First, when sitting in

Jurisdiction A in a case concerning parties who are domiciled in

Jurisdiction B, should a judge disclose their connection with

Jurisdiction B or even recuse himself? Second, does it make a

difference that the party domiciled in Jurisdiction B is closely

connected with the government in Jurisdiction B or that the Judge’s

status as a judge in Jurisdiction B may depend on the power of the

government in that jurisdiction to terminate that status?

Justice Sir Peter Cresswell, a judge of the Financial Services Division of

the Grand Court of the Cayman Islands, heard the petition for the

winding up of the Respondent, made a winding up order and

appointed the Respondent’s liquidators. Cresswell J was also unknown

to BTU Power Company’s (“BTU”) sole director and chief executive

officer Mr. Wael Almazeedi (the “Appellant”), a supplementary judge

of the Qatar International Court.

The problem with this connection was that a number of the

preference shareholders in BTU, who had presented the winding up

petition, were in fact related to the Qatari Government. The concern in

these circumstances was that the Judge may have been subject to the

doctrine of apparent bias: that is to say that, in the absence of any

actual bias, nevertheless the appearances of the thing are such that

the Judge should not have sat on the case in question.

The modern test for apparent bias was stated by Lord Hope in Porter

-v- Magill 1 in these terms:

“The question is whether the fair-minded and informed observer,

having considered the facts, would conclude that there was a real

possibility that the tribunal was biased”.

In coming to a decision, this particular case required Right Honourable

Justice Sir Bernard Rix to consider the role that the Minister of Finance

plays in the appointment and removal of judges in Qatar. The Minister

of Finance is in fact a pivotal figure in determining certain

appointments and removals of members of the Court. His Excellency

Ali Shareef Al Emadi (“Mr. Al Emadi”) was appointed Minister of

Finance and Chairman of the Council of Ministers on 26 June 2013. The

appointment of Mr. Al Emadi was significant because he had

previously been CEO of a subsidiary of one of the original petitioners

in the winding up, and also significant preference shareholder in BTU.

1. [2011] UKHL, [2002] 2 AC 357 AT [103]

16

After a review of the common law position and applying the modern

test for apparent bias, Mr. Justice Rix came to the conclusion that as at

the time when the winding up order was made, the fair-minded and

informed observer would have concluded that it was not uncommon

for a judge to have to deal with litigation in which the government of

the country in which he was a judge was interested. However, in these

circumstances, where the litigation was brought in a different country

from that of the government interested in that litigation, it was

unnecessary for the litigation to be conducted by a judge who was

also a judge of that government’s country. When the litigation was

commenced, Mr. Al Emadi was not Minister of Finance and chairman

of the Council of Ministers in Qatar. The conclusion was that the

fair-minded and informed observer would not have concluded that

the Judge’s independence and impartiality were compromised at that

point. However, the position changed when Mr. Al Emadi became

Minister of Finance and Chairman of the Council of Ministers. At that

point Mr. Al Emadi had a direct interest in claims that BTU had made

against Mr. Wael Almazeedi and in defeating the proofs of debt that

Mr. Wael Almazeedi had brought against BTU. The fair-minded and

informed observer, knowing of the role of Mr. Al Emadi, would

consider that there was a danger that the Judge’s independence and

impartiality were compromised and in that sense that there was a

danger of bias. It was held that all Orders of the Judge in the

proceedings after Mr. Al Emadi was appointed on 26 June 2013 should

be set aside.

Judges should therefore disclose their connection with any relevant

jurisdiction and consider recusing themselves if appropriate, such as if

a judge is closely connected with the government of that jurisdiction

and the judge’s status as a judge may depend on that government.

SECTION 37 OF THE COMPANIES LAW (2007 REVISION) - STATUTORY CONSTRUCTION - SHARE CAPITAL - CLAW-BACK CLAIMS

DD Growth Premium 2X Fund (in official liquidation) -v- RMF Market Neutral Strategies (Master) Limited (Unreported 20 November 2015)

In this case, the Cayman Islands Grand Court clarified that redemption

proceeds paid to investors by insolvent companies out of share

premium cannot be clawed back by a liquidator under Section 37(6)

of the Companies Law (2007 Revision) (the “Law”).

The liquidators of DD Growth Premium 2X Fund (the “Fund”) sought

an appeal to claw-back redemption payments to RMF Market Neutral

Strategies (Master) Limited (“RMF”) made at a time when the Fund

was insolvent.

The Fund was a feeder fund incorporated in the Cayman Islands,

which fell into difficulties in late 2008 and early 2009 and faced a

large number of redemption requests. One such investor was RMF

whose request gave rise to a liability of more than US$62 million,

which was paid in part at a time when the Fund was cash flow

insolvent.

When the Fund was subsequently wound up it transpired that it had,

in effect, become a Ponzi scheme. There was no suggestion that any

of the redeeming investors knew about the fraud. The Fund’s

liquidators instigated proceedings seeking to recover redemption

payments in the amount of US$22 million paid to RMF at the end of

2008.

Due to the timing of the redemption payments, it was the construction

of the Law that fell to be considered.

The Liquidators’ argument was based upon Section 37(6)(a) of the

Law which provides that:

“A payment out of capital by a company for the redemption or

purchase out of its own shares is not lawful unless immediately

following the date on which the payment out of capital is proposed to

be made the company shall be able to pay its debts as they fall due in

the ordinary course of business”.

The liquidators sought to argue that the payments made to RMF were

payments made out of capital at a time that the Fund was insolvent

and that, in effect, payments out of either share capital or share

premium were impermissible.

At first instance, the Chief Justice dismissed this argument and found

that the provisions of Section 37(6)(a) had not been breached as only

a, de minimis, amount of US$1/1000 per share represented share

capital, with the remainder representing share premium, the use of

which was permissible pursuant to the Law. This is the position that is

found in the current version of the Law.

On appeal, the Court of Appeal held that Section 37 of the Law must

be read in conjunction with Section 34 of the Law, which provides that:

payments by a company out of share premium for the redemption or

purchase of its own shares are not payments out of capital and as such

are not subject to any solvency requirement. The Court of Appeal

attached particular importance to Section 34(2)(f), which refers to the

use of share premium “for providing for” the premium payable on

redemption which is held to cover payment for the premium due.

It is now clear that for the purposes of Section 37(6), share capital is

given its natural meaning and represents only the par value of shares.

CAYMAN ISLANDS

17

CAYMAN ISLANDS

The Judgment of the Court of Appeal makes sound commercial

common sense and comes as a relief to many investors, as well as a

disappointment to many liquidators.

SECTION 145 COMPANIES LAW - PREFERENCE - SECTION 93 COMPANIES LAW - SOLVENCY

In the Matter of Weavering Macro Fixed Income Fund Limited (In Liquidation) -v- Skandinaviska Enskilda Banken AB (Publ) (Unreported, 4 December 2015)

The Plaintiffs were the Joint Official Liquidators (the “JOLs”) of a

Cayman fund, Weavering Macro Fixed Income Fund (the “Company”).

In the months prior to its liquidation, the Company made three

redemption payments to the defendant, Skandinaviska Enskilda

Banken AB (Publ) (“SEB”), a Swedish financial institution and investor

in the Company. In these proceedings the JOLs sought a declaration

that these three payments were invalid pursuant to Section 145(1) of

the Companies Law (the “Law”) and an order that those monies be

returned.

Magnus Peterson, the Company’s controlling mind in the payment of

the relevant redemptions, made a decision to pay a number of

investors, including SEB, in priority, on the basis that those investors

were switching to another fund within the Weavering group.

Section 145(1) of the Law provides:

“Every conveyance or transfer of property, or charge thereon, and

every payment obligation and judicial proceeding, made, incurred,

taken or suffered by any company in favour of any creditor at a time

when the company is unable to pay its debts within the meaning of

section 93 with a view to giving such creditor a preference over the

other creditors shall be invalid is made, incurred, taken or suffered

within six months immediately preceding the commencement of a

liquidation”.

Before determining whether the payments were made with a view of

giving a preference under Section 145(1), Clifford J was required to

establish whether the Company was “unable to pay its debts within

the meaning of Section 93”, when each such payment was made. The

test of inability to pay debts under Section 93(3) is one of commercial

insolvency, a so-called cash flow test rather than a balance sheet test.

It is based on a Company’s present inability to pay debts as they fall

due. Clifford J was satisfied that the JOLs had discharged the burden

of proving the Company was unable to pay its debts on the relevant

redemption dates. His Lordship was then required to determine

whether the relevant redemption payments were made with a view of

giving a preference under Section 145(1).

It is important to note that the Cayman Islands legislature has not

followed the UK in replacing its voidable preference regime. Therefore,

the English authorities in the former regime there continue to be

relevant in the Cayman Islands. The Chief Justice reviewed the

applicable case law in RMF Market Neutral Strategies (Master) Limited

-v- DD Growth Premium 2X Fund [2011] 2 CILR 61 (“DD Growth”). Prior

to DD Growth there was limited Cayman authority on the relevant test

to be applied to determine the question of preference. The Chief

Justice summarised the principals as follows:

“The onus is on the person alleging a fraudulent preference to prove to

the satisfaction of the court that the payment impugned was made by

the bankrupt with the intention of preferring the payee over his other

creditors;

It is competent for the court to draw the inference of an intention to

prefer from all the facts of the case;

The intention to prefer, which must be proved, must be the principal or

dominant intention; there might, however, be a valid distinction

between an intention to prefer and the motive for that intention”.

The principles set out by the Chief Justice in DD Growth were

determined to be applicable to the current case. Therefore, it was

necessary to show that the intention to prefer SEB was the principal

or dominant intention when making the redemption payments.

Clifford J was satisfied that each of the SEB redemption payments

were made with the principal or dominant intention of preferring SEB

as a member of a particular class of creditors, the Swedish Redeemers.

In this case, there was not mere selection, but the added dimension of

conscious decision making resulting in a particular section for

payment. An Order was made that SEB repay the sums received from

the three redemption payments to the JOLs.

18

INDEX

CONTENTS BY SUBJECT

SECTION:

Injunctions

2 BERMUDA - SHARE TRANSFER - INJUNCTION TO RESTRAIN COMPANY FROM

HOLDING SPECIAL GENERAL MEETING TO ADOPT AMENDED BYE-LAWS

- PRE-EMPTION RIGHTS

4 BERMUDA - DISCLOSURE OF DOCUMENTS USED BY TRUSTEE IN BEDDOE

PROCEEDINGS - USE OF DOCUMENTS OUTSIDE OF BEDDOE PROCEEDINGS

- APPLICATION TO VARY CONFIDENTIALITY ORDER

Trusts

2 BERMUDA - CONFIDENTIALITY IN TRUST PROCEEDINGS - SECTION 47 OF

THE TRUSTEE ACT - PRIVACY OF BENEFICIARIES

8 BVI - CIVIL APPEAL - TRUST DEED - DISCRETIONARY TRUSTS - DEED OF

APPOINTMENT - POWER OF APPOINTMENT UNDER TRUST - WHETHER

POWER OF APPOINTMENT IN TRUST DEED PERMITS TRUSTEE TO EXCLUDE

A NAMED BENEFICIARY FROM THE OBJECTS OF A DISCRETIONARY TRUST

IN ADVANCE OF APPOINTING CAPITAL TO OTHER NAMED BENEFICIARIES

Companies

2 BERMUDA - SHARE TRANSFER - INJUNCTION TO RESTRAIN COMPANY

FROM HOLDING SPECIAL GENERAL MEETING TO ADOPT AMENDED

BYE-LAWS - PRE-EMPTION RIGHTS

3 BERMUDA - COMPANY LAW - SHAREHOLDERS - TEST FOR UNFAIR

PREJUDICE - APPLICATION TO PUBLIC COMPANIES

9 BVI - INTERLOCUTORY APPEAL - DERIVATIVE PROCEEDINGS -

INTERPRETATION OF SECTION 184C(2)(C) OF BVI BUSINESS COMPANIES ACT,

2004 (AS AMENDED) - MEANING OF ‘LIKELY’ IN WORDING ‘WHETHER THE

PROCEEDINGS ARE LIKELY TO SUCCEED’ - APPEAL AGAINST FINDINGS OF

FACT MADE BY LEARNED JUDGE

13 CAYMAN ISLANDS - DETERMINATION OF FAIR VALUE - SECTION 238(1)

COMPANIES LAW - VALUATION ACTION - APPRAISAL ACTION

16 CAYMAN ISLANDS - SECTION 37 OF THE COMPANIES LAW (2007 REVISION)

- STATUTORY CONSTRUCTION - SHARE CAPITAL - CLAW-BACK CLAIMS

Costs

8 BVI - CIVIL APPEAL - EX PARTE HEARING - COURT’S COSTS JURISDICTION

- CIVIL PROCEDURE RULES - SERVICE OUT OF JURISDICTION OF NON-PARTY

COSTS APPLICATION - WHETHER JUDGE ERRED IN DISMISSING APPLICATION

TO SERVE PARTY OUT OF THE JURISDICTION - RULE 7.3 OF THE ENGLISH

CIVIL PROCEDURE RULES, 2000 - RULE 7.14 OF THE ENGLISH CIVIL

PROCEDURE RULES, 2000 - SECTION 11 OF THE EASTERN CARIBBEAN

SUPREME COURT (TERRITORY OF THE VIRGIN ISLANDS) ACT

Contract

5 BERMUDA - CONTRACT - ENTITLEMENT TO FEES - UNJUST ENRICHMENT

- MISTAKE

Procedure

6 BVI - INTERLOCUTORY APPEAL - CIVIL PROCEDURE RULES - SETTING ASIDE

DEFAULT JUDGMENT - WHETHER A PERSON CAN BRING A CLAIM IN HIS OR

HER BUSINESS NAME AND OBTAIN A DEFAULT JUDGMENT

7 BVI - INTERLOCUTORY APPEAL - DEFAMATION - LIBEL - CIVIL PROCEDURE

AMENDMENT TO STATEMENT OF CASE AFTER FILING - RULE 20.1 OF THE

ENGLISH CIVIL PROCEDURE RULES, 2000 - FACTORS TO BE TAKEN INTO

ACCOUNT IN DECIDING WHETHER OR NOT TO ALLOW AMENDMENT TO

STATEMENT OF CASE AFTER DATE FIXED BY COURT FOR FIRST CASE

MANAGEMENT CONFERENCE - LEAVE TO AMEND DEFENCE TO INCLUDE

ADDITIONAL DEFENCE OF JUSTIFICATION

9 BVI - INTERLOCUTORY APPEAL - CIVIL PROCEDURE RULES - APPELLANTS’

DEFENCE STRUCK OUT IN COURT BELOW BY LEARNED JUDGE FOR

NON-COMPLIANCE WITH PREVIOUS ORDER OF COURT WHICH REQUIRED

THAT COSTS BE PAID PRIOR TO LATE FILING OF DEFENCE - JUDGMENT

ENTERED FOR RESPONDENT IN HER ABSENCE - WHETHER LEARNED JUDGE

ERRED IN STRIKING OUT APPELLANTS’ DEFENCE AND ENTERING JUDGMENT

FOR RESPONDENT IN HER ABSENCE - WHETHER STRIKING OUT OF

DEFENCE AND ENTRY OF JUDGMENT BY LEARNED JUDGE WAS CONTRARY

TO CIVIL PROCEDURE RULES (“CPR”) 27.2(3) AND RULES OF NATURAL

JUSTICE

10 BVI - INTERLOCUTORY APPEAL - STAY OF SPECTRUM AWARD 2015 PROCESS

- CIVIL PROCEDURE RULES - RULE 56.4(8) OF THE ENGLISH CIVIL

PROCEDURE RULES, 2000 (the “ECPR”) - WHETHER A ‘STAY OF

PROCEEDINGS’ UNDER CPR 56.4(8) INCLUDES A STAY OF AN

ADMINISTRATIVE DECISION OR PROCESS - EXERCISE OF JUDICIAL

DISCRETION IN GRANTING INTERIM RELIEF - INTERIM INJUNCTION AGAINST

PUBLIC BODY - ASSESSING WHERE BALANCE OF CONVENIENCE LIES -

DETERMINING RISK OF INJUSTICE

19

Arbitration

7 BVI - CIVIL APPEAL - ARBITRATION - STAY PURSUANT TO SECTION 6(2) OF

THE ARBITRATION ORDINANCE - APPLICATION FOR APPOINTMENT OF

LIQUIDATORS - WHETHER ARBITRATION CLAUSE IN CONTRACT BROUGHT

THE LIQUIDATION PROCEEDINGS WITHIN THE AMBIT OF SECTION 6(2) OF

THE ARBITRATION ORDINANCE

Insolvency/Winding Up/Liquidation

7 BVI - CIVIL APPEAL - SETTING ASIDE STATUTORY DEMAND - SECTION 157(1)

AND SECTION 157(2) OF THE INSOLVENCY ACT, 2003 - WHETHER

STATUTORY DEMAND CONTRARY TO ARBITRATION CLAUSE IN CONTRACT -

WHETHER THE RESPONDENT WAS BARRED BY THE CONVENTION ON THE

LIMITATION PERIOD IN THE INTERNATIONAL SALE OF GOODS (NEW YORK,

1974)

10 BVI - INTERLOCUTORY APPEAL - LOAN AGREEMENT BETWEEN APPELLANT

AND RESPONDENT - INTERPRETATION OF CLAUSES OF MEMORANDUM OF

UNDERSTANDING - CONVERSION OF LOAN INTO EQUITY - APPOINTMENT OF

LIQUIDATORS - WINDING UP - WHETHER APPELLANT BECAME

SHAREHOLDER OF RESPONDENT BY IMPLIED AGREEMENT TO CONVERT

LOAN TO EQUITY IN RESPONDENT OR WHETHER APPELLANT CONTINUED

TO BE CREDITOR OF RESPONDENT AND WAS ENTITLED TO APPOINT

LIQUIDATORS OF RESPONDENT - WHETHER LEARNED JUDGE ERRED IN

STRIKING OUT APPELLANT’S APPLICATION TO WIND UP RESPONDENT ON

JUST AND EQUITABLE GROUND - STANDING - ARBITRATION - EFFECT OF

ARBITRATION

14 CAYMAN ISLANDS - PETITION STRUCK OUT AS ABUSE OF PROCESS

- SECTION 95(3) COMPANIES LAW - AGREEEMENT NOT TO PRESENT

WINDING UP PETITION

14 CAYMAN ISLANDS - WINDING UP PETITION - APPLICATION BY

SHAREHOLDERS TO STRIKE OUT PETITION ON GROUNDS DIRECTORS NOT

AUTHORISED

17 CAYMAN ISLANDS - SECTION 145 COMPANIES LAW - PREFERENCE - SECTION

93 COMPANIES LAW - SOLVENCY

Administrative Law – Judicial Review

11 BVI - INTERLOCUTORY APPEAL - CONSPIRACY - LAWFUL MEANS

CONSPIRACY - INTENTION TO INJURE - AGENCY - LIABILITY OF DIRECTOR

FOR CONSPIRACY TOGETHER WITH COMPANY OF WHICH HE/SHE IS

DIRECTOR - WHETHER LEARNED JUDGE EXERCISED HIS DISCRETION

IMPROPERLY - APPLICATION BY RESPONDENT TO STRIKE OUT APPELLANTS’

CLAIM IN COURT BELOW - APPLICATION BY RESPONDENT FOR SUMMARY

JUDGMENT - APPLICABLE LEGAL TESTS - WHETHER BVI IS APPROPRIATE

FORUM FOR TRIAL OF APPELLANTS’ CONSPIRACY CLAIM

15 CAYMAN ISLANDS - APPARENT BIAS - JUDGES SITTING IN MULTIPLE

JURISDICTIONS

Tax Information Exchange Agreements

3 BERMUDA - INTERNATIONAL COOPERATION (TAX INFORMATION EXCHANGE

AGREEMENTS) ACT, 2005 (THE “2005 ACT”) - CONTEMPT - COSTS

12 CAYMAN ISLANDS - CAYMAN ISLANDS TAX INFORMATION AUTHORITY

- REQUESTS FOR INFORMATION - AUSTRALIAN TAX INFORMATION

EXCHANGE AGREEMENT

INDEX

Contact Us

BERMUDA

Clarendon House2 Church StreetHamilton HM 11 Bermuda

Tel: +1 441 295 1422 bermuda@conyersdill.com

Narinder K. Hargun Head of Litigation, Co-Chair

narinder.hargun@conyersdill.com

BRITISH VIRGIN ISLANDS

Commerce House, Wickhams Cay 1P.O. Box 3140Road Town, TortolaVG1110 British Virgin Islands

Tel: +1 284 852 1000

bvi@conyersdill.com

Mark J. Forte Head of Litigation

mark.forte@conyersdill.com

CAYMAN ISLANDS

Boundary Hall, 2nd Floor Cricket Square P.O. Box 2681Grand Cayman KY1–1111Cayman Islands

Tel: +1 345 945 3901

cayman@conyersdil.com

Paul Smith Head of Litigation

paul.smith@conyersdill.com

DUBAI

Level 2Gate Village 4Dubai International Financial CentreP.O. Box 506528Dubai, U.A.E.

Tel: +9714 428 2900

dubai@conyersdill.com

HONG KONG

29th Floor One Exchange Square8 Connaught PlaceCentralHong Kong

Tel: +852 2524 7106hongkong@conyersdill.com

Nigel K. Meeson, QC Head of Asia Disputes & Restructuring

nigel.meeson@conyersdill.com

LONDON

10 Finsbury SquareLondon EC2A 1AF United Kingdom

Tel: +44 (0)20 7374 2444

london@conyersdill.com

MAURITIUS

Level 3, Tower I Nexteracom Towers Cybercity, Ebene Mauritius

Tel: +230 404 9900mauritius@conyersdill.com

SINGAPORE

9 Battery Road20–01 Straits Trading Building049910 Singapore

Tel: +65 6223 6006singapore@conyersdill.com