The Big Chill

The British Virgin Islands is an idyllic collection of islands in the Caribbean. More importantly for commercial lawyers, they are home to about 950,000 corporate vehicles, limited partnerships and trusts, which represent about 40% of the world's offshore structures. It is therefore likely that practitioners will come across the BVI at some point, given that the sheer number of structures has led to a large number of BVI court disputes. The BVI is a British dependent territory, and so naturally English common law is generally applied; a number of BVI statutes are also based on English law. However, there are important differences in some BVI statutes, such as the BVI's very user-friendly Business Companies Act, and some subtle differences such as in the BVI's Insolvency Act. There are also some areas where BVI does not have an equivalent English statute, such as Section 25 of the English Civil Jurisdiction and Judgments Act, which provides the English court with a statutory basis for the grant of injunctions in aid of foreign proceedings.

The BVI does have Section 24 of the West Indies Associated States Supreme Court Act, which provides that an injunction may be granted in all cases in which it appears to the court to be just and convenient, and Part 17.1 of the Civil Procedure Rules, that provides the court with the ability to make a wide variety of interim orders, including at Rule 17.1(b) an interim injunction.

The BVI court has generally followed the guidelines in American Cyanamid Co v Ethicon Ltd [1975] AC 396 (with the exception of freezing injunctions which are set out below), which can be summarised as follows. First of all, there must be a serious question to be tried, and so if the evidence fails to disclose the claimant has any real prospect of succeeding in his claim at trial, an injunction will be refused.

If a claimant can show a serious question to be tried, the BVI court will then consider three further questions: (a) if the claimant were correct at trial, whether an award of damages would be an adequate remedy; (b) if the injunction is granted and the defendant was successful at trial, whether damages under the cross undertaking would be an adequate remedy; and (c) if the balance of convenience favours an injunction, particularly if there is doubt as to the adequacy of the remedy of damages. These elements are standard where English common law is applied, as are the requirements for a claimant to give an undertaking in damages and the duty of full and frank disclosure, which are...