Black Swan resurrected
On New Year’s Eve, the BVI House of Assembly approved important draft legislation that provides for interim relief in support of foreign proceedings. We expect that the legislation will be assented to and will come into force imminently.
Once formally in law, parties will have a statutory route to obtain free-standing interim relief (including the appointment of receivers) in support of foreign proceedings, whether sought against BVI persons or non-BVI persons. The legislation will also provide a statutory route for interim relief to be granted against non-cause of action defendants (otherwise known as the Chabra jurisdiction).
Finally, the draft legislation codifies the ability to grant Norwich Pharmacal disclosure in aid of foreign proceedings; this was an issue that has generated debate in recent cases in the BVI.
Since 2010 the BVI Courts created the common law power to grant standalone interim relief in support of foreign proceedings under the well-known decision of Black Swan. The Court of Appeal reversed that power in May 2020 leading to the draft legislation.
An appeal of that decision and the common law power to grant interim relief in support of foreign proceedings will be examined and resolved by the Privy Council at an expedited hearing in February 2021. Harneys acts for the Appellant. In the meantime, the BVI has taken steps to restore clarity and ensure efficacy in cross border asset tracing and recovery efforts.
Harneys’ Head of BVI Litigation, Andrew Thorp, noted that "the changes reflect the BVI's status as a leading financial centre and its proactive approach in the fight against global fraud."
For further details please speak to your usual contact at Harneys.