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Offshore Litigation Blog

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Virgin Gorda Yacht Harbour Limited v Little Dix Hotel
In its recent decision in Virgin Gorda Yacht Harbour Limited (VGYH) v Little Dix Hotel (LDH) the BVI High Court considered and affirmed the relevant legal principles governing the interpretation of an option contained in a contract for the purchase of land.
Departing from creditor priority in English cram downs – no US style “absolute priority”
Under the English regime, where one or more meetings of creditors or members has not approved a plan of arrangement by the requisite majority, the court is empowered nevertheless to sanction the plan, by using the cross-class cram-down power. English cases are of interest since they are persuasive in the offshore jurisdictions. Harneys believes that cram downs, if implemented by future legislative change, would make a positive contribution to offshore restructuring.
English cram downs - Attempts artificially to create an in-the-money class to be avoided
In Houst Limited [2022] EWHC 1941 (Ch) Mr Justice Zacaroli approved a plan of arrangement under Part 26A of the English Companies Act 2006 cramming down the HM Revenue and Customs (HMRC) who objected to the plan. English cases are of interest since they are persuasive in the offshore jurisdictions. Harneys believes that cram downs, if implemented by future legislative change, would make a positive contribution to offshore restructuring.
Flexibility of injunctions: JSC Commercial Bank v Kolomoisky
In the recent decision of JSC Commercial Bank Privatbank v Kolomoisky and Ors [2022] EWHC 1445 (Ch), the English High Court considered a novel application for orders requiring a defendant to take active steps to recover a debt owed to him in furtherance of an existing freezing injunction over his assets. The decision illustrates the flexibility of the court’s jurisdiction to grant injunctions and ancillary relief when faced with unusual circumstances.
Exact change only – Discharging freezing and receivership orders on the grounds of a material change in circumstances
On 24 Mar 2021, the Court of Appeal handed down judgment in Mitsuji Konoshita and A.P.F. Group Co Ltd v JTrust Asia Pte Ltd (BVIHCMAP 2020/0017), leaving helpful guidance on discharging freezing and receivership orders from material changes in circumstances.
The Privy Council revisits illegal and ultra vires corporate transactions
In the recent decision of SR Projects Ltd v Rampersad, the liquidator of the Hindu Credit Union Co-Operative Society on behalf of the Hindu Credit Union Co-Operative Society Ltd [2022] UKPC 24, the Judicial Committee of the Privy Council permitted a lender to enforce a secured loan despite the loan being illegal.
Missed understanding: BVI Court holds directors in breach of their duty to act for a proper purpose
On 17 January 2022, the BVI Commercial Court handed down judgment in Green Elite (In liquidation) v Fang Ankong et al, in which a claim for breach of directors’ duties was brought by the liquidators of Green Elite against the former directors of that company. The Court held that the directors breached the requirement under section 121 of the BVI BCA to carry out their duties for a proper purpose with the result that they were liable in restitution for certain sale proceeds received by them.
Recognised but not Compromised; English Court recognises Brazilian insolvency over dissolved company
On 21 February 2020, the English High Court in Osana Medonça and KPMG Finance recognised insolvency proceedings in Brazil over a dissolved English company.
Hong Kong Court clarifies the decision in Re Legend International Resorts Ltd
In the recent decision of China Solar Energy Holdings Limited [2018] HKCFI 555, Mr. Justice Harris dismissed a winding-up application and attempts to discharge the Company’s provisional liquidators, holding that provisional liquidations appointed in Hong Kong for the purposes of preserving the Company’s assets, may also be granted powers to explore and facilitate the restructuring of the Company’s debts and liabilities.
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