Leave To Appeal To The Privy Council: Sian Participation Corporation (In Liquidation) V Halimeda International Limited

• Published date: 16 May 2023
• Subject Matter: Litigation, Mediation & Arbitration, Arbitration & Dispute Resolution
• Law Firm: Appleby
• Author: Mr Andrew Willins and Tamara Cameron

On 24 April 2023, the Court of Appeal of the Eastern Caribbean Supreme Court delivered a further judgment in Sian Participation Corporation (in Liquidation) v Halimeda International Limited ¹, providing useful guidance for meeting the threshold requirements for leave to appeal against a decision to uphold a winding up order. That judgment also clarifies further the Court's approach to staying applications for the appointment of a liquidator where the debt upon which the application was based was the subject of an arbitration agreement.

The application made by Sian Participation Corporation ("Sian") arose from an order for the appointment of liquidators which was obtained by Halimeda International Limited ("Halimeda") on the basis that Sian was insolvent in view of its failure to pay a US$226 million debt which was due and owing to Halimeda. At first instance, Sian disputed its insolvency or that the debt was due and owing. During the course of the winding up proceedings, Sian also contended that there was an operative arbitration agreement between the parties which warranted the proceedings being dismissed or stayed. The learned judge found that debt was not disputed on genuine or substantial grounds and that the arbitration issue was raised too late.

Sian's appeal against the learned judge's decision was dismissed along with an application to adduce as fresh evidence the outcome of a separate arbitration between Sian and third parties to show that the debt was disputed on genuine and substantial grounds. See our article on that decision here: Too Late To Arbitrate | Appleby (applebyglobal.com).

In this further decision, Sian's application for leave to appeal to the Privy Council was dismissed.

Sian brought that application on two bases: first, it contended that it was entitled to appeal as of right on the basis that the appeal was a final decision directly or indirectly respecting property valued at '300 or higher; second, that the Court's departure in Jinpeng Group Limited v Peak Hotels and Resorts Limited ² from the decision of the English Court of Appeal in Salford Estates (No. 2) Ltd v Altomart Ltd ³ in relation to the proper approach to a disputed debt petition where the underlying dispute was the subject of an arbitration agreement was an issue which raised questions of great general or public importance.

On the first question, there was surprisingly limited authority on the question of whether or not an appeal from a winding up order respected...