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In the recent Scottish case of Chang Chin Fen v Cosco Shipping (Qidong) Offshore Ltd, the Outer House of the Court of Session refused petitions brought by debtor companies under the Cross-Border Insolvency Regulations, 2006 to, amongst other things, recognise moratoria obtained in the Singapore High Court on the basis that to do so would prejudice the rights of a creditor to claim under its English-law governed debt, which stood outside the proposed Singapore schemes.

The Judicial Committee of the Privy Council has handed down its judgment in the Broad Idea appeals confirming that where the BVI High Court has personal jurisdiction over a party, the court has power to grant a freezing injunction against that party to assist enforcement through the court’s process of a prospective (or existing) foreign judgment. The Eastern Caribbean Court of Appeal was wrong to hold otherwise and overturn Black Swan. The common law equitable power to grant such injunctions did – and continues to – exist.

In this episode of our Take 10 podcast, BVI Head of Litigation, Insolvency and Restructuring Andrew Thorp is joined by partner Jonathan Addo to discuss the eagerly awaited Privy Council full board decision in Convoy Collateral Limited v Broad Idea International Limited which was handed down on 4 October 2021. The Privy Council was asked to determine whether the Eastern Caribbean Court of Appeal was right in overturning the BVI Commercial Court’s 2010 Black Swan decision, where Justice Bannister held that he had power to grant a freezing order in support of foreign proceedings against a non cause of action defendant within the BVI Court’s jurisdiction. The 4-3 majority judgment given by Lord Leggatt confirms that Justice Bannister was correct and will now be the leading authority on interim injunctions.

In the recent Grand Court case of Re Obelisk Global Fund SPC, Justice Parker has considered, for the first time, the correct insolvency test to be applied for the court appointment of a receiver over a segregated portfolio.

In the recent decision of Re Adamas Heracles Multi Strategy Fund, FSD No 133 of 2021, the Grand Court was asked to rule as to the identity of proposed liquidators; not on the ground of alleged suitability, but because of an alleged undesirability of having the same liquidators appointed over affiliated companies – by reason of conflict.

In the sixth episode of our Take 10 podcast, Hong Kong partner Andrew Johnstone invites Peter Ferrer, our BVI-based co-head of the global Litigation, Insolvency and Restructuring team, and Hong Kong-based counsel Andrew Chin, to join him for a discussion on all things arbitration, particularly the use of arbitration in offshore disputes.

In the recent decision of Ross Leasing Ltd and Anor v Nile Air [2021] EWHC 2201 (Comm), the English High Court examined whether third party debt orders (formerly garnishee orders) could be made in respect of a foreign debt.

In the recent decision of the BVI Commercial Court in Hydro Energy v Zhaoheng, the Court continued the appointment of provisional liquidators and refused to stay the underlying application to wind up a BVI company on just and equitable grounds notwithstanding that the applicant had already commenced arbitration proceedings in Hong Kong pursuant to which interim relief had already been granted.

Cayman Court appointed liquidators are officers of the court; they must be professional insolvency practitioners; and they must act independently in the best interests of those with the economic interest in the liquidation (being the shareholders in a solvent liquidation and the creditors in an insolvent liquidation).