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Offshore Litigation Blog

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Take 10 podcast series with pulsing headphones
Harneys litigation podcast “Take 10” Season four – Episode One: Arbitration and Interim Measures
In our first episode of this season’s Take 10 podcast, Asia Managing Partner Ian Mann and Counsel Andrew Chin talk about how the legislature and judiciary of the British Virgin Islands (BVI) and the Cayman Islands are constructing a favourable landscape for the application of interim measures in aid of international arbitration, no matter where those arbitrations are seated.
Post-judgment freezing orders and the "Angel Bell" exception
In the recent decision of Lenkor Energy Trading DMCC v Puri [2022] EWHC 2113 (Comm), the English High Court has considered whether to permit a defendant to deal with his assets in the ordinary course of business in the context of a post-judgment freezing order. While this is an English decision, it will be of relevance and interest to practitioners in the Cayman Islands, British Virgin Islands and Bermuda, where the legal principles relating to freezing orders are largely derived from English law.
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.
Green Asia Restructure Fund SPC - The challenge of insolvent portfolio companies
In the recent decision in Re Green Asia Restructure Fund SPC, the Grand Court of the Cayman Islands considered an application by a creditor for the appointment of receivers to the portfolios of a Segregated Portfolio Company (more commonly referred to as an SPC) on the grounds of their insolvency. The decision highlights some of the practical difficulties that creditors of a portfolio of an SPC face when seeking to have the portfolio wound up.
Bearing witness: Convenience of witnesses a core factor in forum challenges
In the recent case of Oscar Trustee Limited v MBS Software Solutions Limited, the Eastern Caribbean Court of Appeal upheld the decision of the Commercial Court and reaffirmed that the convenience of witnesses including their availability and location remains not simply a relevant but in fact a core factor in forum non conveniens applications.
Keep it brief: a reminder from the Court on the benefits of brevity
On 9 August 2022, the Grand Court of the Cayman Islands dismissed a winding up petition in Seahawk China Dynamic Fund. In giving his judgment, Justice Doyle took the opportunity to urge practitioners to exercise more discipline and focus on making skeleton arguments and written submissions shorter.
The need for an investigation: a freestanding basis to wind up a company?
In a recent decision of the Grand Court in Seahawk China Dynamic Fund, Justice Doyle considered whether the need for an investigation can be a self-standing ground for winding up a company. In dismissing the petition, Justice Doyle recorded his preliminary view that the need for an investigation may be a sufficient ground for winding up a company by itself, but he left the issue open for determination, suggesting that this position is not settled law in the Cayman Islands, notwithstanding prior cases on the issue. Harneys acted for the successful respondent to the petition.
Cross-undertaking in damages principles: Privy Council – Cayman Islands
In a recent decision of the Privy Council in Ennismore Fund Management Ltd v Fenris Consulting Ltd [2022] UKPC 27, on appeal from the Cayman Islands, the key principles for making an award under the cross undertaking in damages following the discharge of an interim injunction were set out.
Enforcement of judgment debts: The novel approach in Brake v Guy
In the recent English High Court decision of Brake & Anor v Guy & Ors [2022] EWHC 1746 (Ch) (11 July 2022), a judgment creditor successfully obtained an injunction against a judgment debtor requiring him to draw down his pension, and a third party debt order against the pension trustee in respect of the proceeds of that draw down.
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.
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