BVI Litigation And Insolvency Client Update - March 2015

Welcome to our first BVI litigation and insolvency bulletin, with updates on selected recent cases and developments.

NEWS

The BVI's first Commercial Division judge, Mr Justice Edward Bannister QC, retires this month and we wish him well. His replacement has been announced as experienced Canadian dispute resolution lawyer Mr Barry Leon, formerly of Perley-Robertson, Hill & McDougall LLP. Mr Leon has been appointed with effect from 16 March 2015.

CASE SUMMARY

This bulletin looks at four recent BVI cases from the Privy Council, Court of Appeal and the BVI Commercial Court:

Nilon Limited and another v Royal Westminster Investments S.A. and others [2015] UKPC 2. Key issues - rectification of the share register, service out of the jurisdiction, forum non conveniens. Wang Zhongyong and ors v Union Zone Management Limited and ors BVIHCMAP 2013/0024. Key issues - just and equitable winding up, quasi-partnership, frustration of purpose, affairs of subsidiary. Hornbeam Corporation v Halliwel Assets Inc and ors BVIHC (COM) 2014/105. Key issues - third party costs orders. Sonera Holding B.V. v Cukurova Holding A.S. BVIHC (COM) 2011/119. Key issues - anti-arbitration injunctions. One other case which is worthy of a brief mention is the Privy Council's decision in Singularis Holdings Limited v PricewaterhouseCoopers, on appeal from the Court of Appeal of Bermuda. This has been widely reported elsewhere so is not covered in detail here save for the following note. As part of its judgment the Privy Council summarised the state of statutory assistance available to foreign insolvency officeholders in a number of jurisdictions other than Bermuda, including the BVI. At paragraph 43 of the judgment it is stated that the UNCITRAL model law is given effect in the BVI by Part XIX of the BVI's insolvency act. This is not correct - whilst Part XIX does give the BVI Court the power to assistant foreign officeholders from a limited number of designated jurisdictions, the model law provisions of the Insolvency Act are to be found at Part XVIII and have never been brought into force.

Nilon Limited and another v Royal Westminster Investments S.A. and others [2015] UKPC 2

Two key questions arose on this appeal: one, whether the statutory mechanism for the rectification of the share register of a BVI company in section 43 of the BVI's Business Companies Act is amenable to be used in proceedings involving an untried allegation of fact that a defendant (D2) has agreed to cause shares in a BVI...