In KMG International NV v DP Holding SA, the BVI Commercial Court confirmed its support for cross-border cooperation in relation to insolvency matters.
Here, Justice Jack considered an ex parte, on the papers application for permission to serve an originating application for the appointment of a liquidator outside the jurisdiction.
KMG sought to enforce a Dutch arbitration award in the BVI against DP Holding, a Swiss company that had significant BVI assets. KMG’s first application for the appointment of liquidators and provisional liquidators was granted but due to related appeals the application for the appointment of liquidators was not determined within the statutory timeframe under section 168 of the Insolvency Act 2003. In the meantime, winding up proceedings were brought in Switzerland by another creditor. The Swiss bankruptcy administrator was uncooperative in respect of KMG’s BVI insolvency proceedings.
Justice Jack was critical of the bankruptcy administrator on the basis of the facts put before him, regrettably considering the behaviour inappropriate and noting, “It should be standard practice for cross-border insolvency practitioners to agree protocols so that they can work together”. Justice Jack said the result of the bankruptcy administrator’s approach seemed effectively to stymie enforcement steps in the BVI, whilst taking no steps to have his appointment recognised in the BVI.
In light of those failings, Justice Jack considered the BVI a more appropriate forum for winding up DB Holding’s BVI assets. He granted permission to serve the application for the appointment of a liquidator outside the jurisdiction on the grounds he was satisfied that:
- There is a good arguable case that the claim comes within the jurisdiction gateway provided by ECSC CPR 7.2(1), read in conjunction with sections 163 and 170 of the Insolvency Act 2003;
- The arbitration award is binding and enforceable in the BVI; and
- The BVI is a more appropriate forum for the liquidation of the BVI assets than Switzerland.
This decision demonstrates the importance of cross-border cooperation between insolvency practitioners, and where an overseas insolvency practitioner is hampering proceedings in the BVI, the BVI Court will step in to assist. This should give comfort to creditors looking for relief in the BVI.