Free Standing Relief: Black Swan Orders

It has been almost 3 years since the substantial change to BVI law, brought about by the Black Swan case. Phillip Kite and Claire Robey set out where BVI law now stands in this important area.

Prior to 2010 freezing injunctions in the British Virgin Islands were only available ancillary to a substantive domestic cause of action against the respondent. It was not possible to seek an injunction ancillary to foreign proceedings. This was a result of a restrictive interpretation of Lord Diplock's speech in The Siskina.1 In that case, the House of Lords was deciding a case where the defendant was not within the court's in personam jurisdiction and it was therefore a case concerning whether an injunction could form the basis for the grant of service outside of the jurisdiction. The English courts have never had to decide in the years since The Siskina whether it had jurisdiction to grant a freezing injunction against a defendant within the territorial jurisdiction in aid of foreign proceedings. This was due to the passing of (the English) section 25 of the Civil Jurisdiction and Judgments Act 1982 which gives the court express power to make orders in aid of foreign proceedings.

The restrictive British Virgin Islands approach was overturned by the High Court, Commercial Division in Black Swan Investment ISA v Harvest View Limited.2 There the Commercial Court held that it was within its discretion to grant a stand alone freezing injunction in support of foreign proceedings where the respondent was within the in personam jurisdiction of the British Virgin Islands court.3 The court followed the English decision of Channel Tunnel Group v Balfour Beatty Ltd4 and held that The Siskina5 did not prevent a court from granting an interlocutory injunction ancillary to a claim for substantive relief to be granted by a foreign court or arbitral body. In Channel Tunnel Group v Balfour Beatty Ltd Lord Mustill held that: '... the court has power to grant interlocutory relief based on a cause of action recognised by English law against a defendant duly served where such relief is ancillary to a final order whether to be granted by the English court or by some other court or arbitral body'.

Since there was no reason in principle why a claimant could not enforce a foreign money judgment in the British Virgin Islands courts, there was no logical reason why he should not be able to make a claim for relief which was ancillary to a foreign award or judgment which would...

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