Black Swan Given Statutory Force: BVI Legislature Confirms Jurisdiction To Grant Freestanding Relief In Support Of Foreign Proceedings

• Published date: 11 January 2021
• Subject Matter: Litigation, Mediation & Arbitration, Trials & Appeals & Compensation
• Law Firm: Carey Olsen
• Author: Alex Hall Taylor QC, James Noble, Jeremy Lightfoot, Richard Brown and Tim Wright

Just days into 2021, new legislation has been enacted which gives the BVI Court jurisdiction to grant freestanding freezing orders and other interim relief in support of foreign proceedings.

The Eastern Caribbean Supreme Court (Virgin Islands) (Amendment) Act, inserts a new section 24A into the Eastern Caribbean Supreme Court (Virgin Islands) Act. It provides a statutory jurisdiction to grant interim relief where proceedings have been or are about to be commenced in a foreign jurisdiction, and allows the court to grant any relief which may be granted in relation to matters within the BVI Court's jurisdiction (including freezing injunctions and receivership appointments). It expressly gives the Court power to grant relief against non-cause of action (or 'Chabra') defendants.

The Act also confirms sthe BVI Court's common law jurisdiction to make disclosure orders (e.g. Norwich Pharmacal/Bankers Trust orders) in support of actual or contemplated foreign proceedings, even where a letter of request might also be available to the applicant as an alternative. This confirms sthat the BVI Court will not be bound by the English decision in Ramilos Trading Limited v Buyanovsky [2016] EWHC 3175 (Comm). Although several decisions of the BVI Court had already confirmed dthat it would not follow Ramilos Trading, this legislative amendment adds further certainty in this important area.

The Act finally yremedies a lacuna in the BVI's legislation, which did not previously provide for the Courts to grant interim remedies in support of proceedings on foot outside the BVI. That lacuna had been filled dby the so-called Black Swan jurisdiction, named after the case in which Justice Bannister applied the dissenting judgment of Lord Nicholls in Mercedes Benz AG v Leiduck [1996] 1 AC 284, and ruled that the BVI Court was not...