Harney Westwood & Riegels

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Harneys is a leading international offshore law firm. We provide the world’s top law firms, financial institutions and corporations with legal services relating to British Virgin Islands, Cayman Islands, Cyprus, Anguilla and Bermuda law (provided through Harneys’ exclusive association with Zuill & Co which is an independently owned and controlled Bermudian law firm).

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Updates

Arbitration & ADR

Court appoints receiver under Arbitration Act to preserve assets pending arbitration award
British Virgin Islands | 11 October 2018

A BVI court has appointed Grant Thornton as a receiver over a BVI company under Section 43 of the Arbitration Act 2013 in order to preserve the value of the company pending the determination of foreign arbitration proceedings. The decision illustrates the effectiveness of the interim relief provided under the Arbitration Act to preserve assets against which an arbitration award will be enforced.

Sixtieth anniversary of New York Convention – time to choose BVI arbitration and enforcement
British Virgin Islands | 05 July 2018

The British Virgin Islands is a pro-arbitration jurisdiction. Under the Arbitration Act, with regard to both New York Convention awards and non-New York Convention awards, the party against which the award has been made can make representation to the court regarding a refusal to enforce. An example of the British Virgin Islands' pro-enforcement approach can be seen in Belport Development Limited v Chimichanga Corporation.

Banking

Launching an ICO in British Virgin Islands
British Virgin Islands | 15 December 2017

Interest in the setting up and distribution of initial coin offerings (ICOs) in the British Virgin Islands and other offshore locations has increased rapidly during 2017, and this is expected to continue. No ICO or blockchain-specific rules or guidelines have yet been issued by the government or regulator; however, there are several important issues for parties in the British Virgin Islands to consider, including the key laws and regulations surrounding the issue.

Launching an ICO through Cyprus – an overview
Cyprus | 10 November 2017

Unlike many other popular initial coin offering (ICO) jurisdictions, Cyprus is an EU member state and, as such, founders of ICOs must comply with the panoply of single market regulation. However, as they are largely unregulated at present, the benefits of launching an ICO in Cyprus can be significant. These include an EU base, a central time zone, access to Cyprus's vast array of tax treaties and white-list status among tax authorities globally.

Structuring an ICO through the Cayman Islands
Cayman Islands | 03 November 2017

It seems that 2017 will be remembered as the year of the initial coin offering (ICO). The Cayman Islands is witnessing an upsurge in ICO-related business and structuring an ICO through the territory remains an attractive proposition. However, ICO-specific guidance is yet to be issued by the government or the regulator, and a number of legal uncertainties remain. Existing statutory and regulatory regimes must therefore be considered when structuring an ICO.

EU Banking Recovery and Resolution Directive: the Cyprus position
Cyprus | 27 January 2017

In 2013 Parliament passed the Resolution of Credit and Other Institutions Law to facilitate the restoration of the viability of the Cyprus financial sector. However, this law was enacted before the implementation of the EU Banking Recovery and Resolution Directive. Parliament has now enacted the new Law for the Resolution of Credit Institutions and Investment Companies in order to align Cyprus national law fully with EU provisions.

Passporting through Cyprus post-Brexit
Cyprus | 18 November 2016

The most pressing Brexit concern for UK-based credit and financial institutions is the terms on which they will continue to have access to the EU single market and related passporting rights if and when the United Kingdom leaves the European Union. Cyprus can offer a solution to international firms and institutions seeking certainty over EU single market access.

Capital Markets

ESMA guide provides clarity regarding obligations under Transparency Requirements Law
Cyprus | 11 April 2017

The European Securities and Markets Authority recently published a practical guide which provides an overview of each EU member state's national rules for the major holdings notification regime provided under the EU Transparency Directive. The guide clarifies certain key obligations and deadlines which apply under the Cyprus legislation that implemented the EU Transparency Directive and the Transparency Requirements Law.

PDMRs and closed periods under Market Abuse Law
Cyprus | 07 March 2017

The government recently enacted the Market Abuse Law (102(I)/2016), which implemented the EU Market Abuse Regulation (596/2016). A provision of the regulation which has generated much discussion relates to persons discharging managerial responsibilities and the obligations of persons closely associated with them regarding transactions conducted on their own account concerning the issuer's shares, debt instruments, derivatives or other linked financial instruments.

Company & Commercial

Are you wearing the right hat? Directors' duties revisited by Court of Appeal
British Virgin Islands | 29 October 2018

The Court of Appeal judgment in Antow Holdings Limited v Best Nation Investments Limited continues the development of the law regarding BVI directors' duties following the Independent Asset Management appeal, which established – for the first time in the British Virgin Islands – clear guidance regarding the proper purpose test. The decision is arguably at the extreme end of the spectrum, with the court describing the motives of the Best Nation directors as self-serving.

Court of Appeal provides guidance on directors' powers
British Virgin Islands | 22 January 2018

A recent Court of Appeal ruling provided guidance on directors' powers after considering whether a fresh issuance of shares by directors which altered the balance of voting power between the shareholders was done for a proper purpose. The court held that directors should not issue shares in a manner that could affect the balance of power between groups of shareholders or create new majorities, irrespective of whether the old or new majority have a proprietary interest in the fund.

BVI continuations and discontinuations – an overview
British Virgin Islands | 23 October 2017

The ability to continue a foreign company as a BVI company or to continue a BVI company as a company under the laws of another jurisdiction quickly and seamlessly is just one example of the many flexible features of the Business Companies Act 2004. This feature is particularly useful in the context of corporate reorganisations, and counsel should be aware of the process and requirements for continuations and discontinuations.

Shareholder activism: considerations for BVI companies
British Virgin Islands | 21 August 2017

As the world's leading incorporation vehicles, BVI companies are listed on exchanges and conduct business around the world and may therefore expect to be occasionally involved in activist campaigns or other challenges from shareholders. However, many investors and their advisers may be less familiar with BVI company law than their domestic legislation.

Cayman Islands to introduce LLPs
Cayman Islands | 27 March 2017

Draft legislation was recently published to introduce the limited liability partnership (LLP) as a new partnership vehicle in the Cayman Islands. The bill provides for the formation, registration and operation of an LLP as an entity with limited liability and legal personality separate from its partners. The bill also provides for the conversion of existing Cayman partnerships into LLPs and the continuation of foreign LLPs into the Cayman Islands.

Introduction of beneficial ownership registers proposed
Cayman Islands | 20 March 2017

The government recently published draft legislation which, when adopted, will require Cayman companies to maintain beneficial ownership registers and for the information in the registers to be made automatically available to the Cayman Islands competent authority through a centralised beneficial ownership platform. The legislation is now expected to pass through the usual approval process in the Legislative Assembly.

An unusual choice? BVI restricted purposes company
British Virgin Islands | 21 November 2016

Restricted purposes companies offer certain advantages and are a valuable facet of the British Virgin Island's offerings to international finance. While restricted purposes companies are intentionally niche and specialised, they prove that there remains a place in the contemporary legal world for more traditional principles of common law, such as restricted purposes and constructive notice.

Corporate Tax

Tax information exchange: an overview
British Virgin Islands | 26 January 2018

The BVI tax information exchange system is largely modelled on international principles developed by the Organisation for Economic Cooperation and Development and is split into two types of regime. The 'automatic' exchange of information regime requires financial institutions to exchange formulistic data about the accounts of foreign taxpayers, while the 'on request' regime deals with specific and potentially in-depth investigations into the affairs of named taxpayers with offshore or international holdings.

Introduction to automatic exchange of information for investment funds
Cayman Islands | 01 September 2017

As Cayman Islands entities are not directly subject to the so-called 'automatic exchange of information' agreements, the government has introduced legislation to implement these under the Tax Information Authority Law. Guidance notes have also been issued, providing details of the notification, reporting and ongoing obligations that apply, as well as a useful reminder of the differences between the Foreign Account Tax Compliance Act and the Common Reporting Standard.

Employment & Benefits

Legislation to change work permit fee calculation enacted
British Virgin Islands | 09 August 2017

The government recently enacted a measure regarding the fees payable for work permits in the British Virgin Islands. The amendment order replaces the employee flat fee system with an incremental calculation based on salary bands, which now generally assume a higher gross salary. It also replaces most exceptions to the previous scheme, keeping only those for domestic workers.

Immigration

BVI exempts certain categories of people from work permit requirements
British Virgin Islands | 08 September 2017

The government recently enacted the Labour Code (Work Permit Exemption) Order 2017, which excludes certain categories of people from the need to obtain work permits. In particular, the exemption for directors visiting the British Virgin Islands for board meetings supports the territory's position as the leading corporate domicile in the global economy.

Insolvency & Restructuring

Appointing liquidators after alleged loss of substratum
British Virgin Islands | 07 September 2018

The Court of Appeal recently considered the test for appointing liquidators to a company following an alleged loss of substratum. The case provides insight on the principles of loss of substratum, particularly in a case where a company's object is not prescribed by its memorandum and articles of association.

Discretionary beneficiaries' rights to trust information
British Virgin Islands | 31 August 2018

In separate but related proceedings, the BVI courts have permitted an applicant to inspect documentation relating to the liquidation of certain BVI companies. The decisions solidify the open justice policy and highlight the importance of allowing beneficiaries to oversee trustees' activities in order to ensure that the trust property is properly managed and that trustees can be held to account accordingly.

No armchair liquidators – court confirms appointment of provisional liquidators to Swiss company
British Virgin Islands | 01 June 2018

In the latest judgment regarding the DPH liquidation, the BVI Court of Appeal upheld the appointment of BVI provisional liquidators in respect of a Swiss company and clarified that evidence of dissipation of assets (in the Mareva sense) may not be a pre-condition to the appointment of provisional liquidators.

Court strikes out passing-off claim in relation to goodwill held outside British Virgin Islands
British Virgin Islands | 11 May 2018

Claims of passing off are rare in the British Virgin Islands and a recent attempt to bring a BVI action in relation to goodwill held outside the jurisdiction has failed. The court examined the law and relevant English authorities on the tort of passing off. It opined that goodwill is governed by territoriality and that in order to succeed, the claimant must prove that it has goodwill in the form of customers in the jurisdiction in which the suit is undertaken.

Primeo: should a liquidator alter register of members?
Cayman Islands | 20 April 2018

The Cayman Islands Court of Appeal has held that a liquidator cannot use his or her statutory power pursuant to Section 112(2) of the Companies Law to rectify the register of members where the effect would be to override investors' proprietary rights. It held that the section does not aim to provide for substitution of incorrect net asset value if, despite its incorrectness, it has been calculated in accordance with a member's contractual rights.

Pacific Andes saga: forum shopping, Chapter 11 and just and equitable winding up
British Virgin Islands | 01 September 2017

'Forum shopping' is the practice of choosing the most favourable jurisdiction in which to bring a claim. In principle, there is nothing wrong in seeking to have a case heard in the forum which is most favourable to the client. However, it can lead to some fierce jurisdictional battles, particularly in insolvency, where the choice between debtor and creditor-friendly procedures can be stark. The Commercial Court has been wrestling with this situation over the past 10 months.

Court clarifies ranking of shareholder claim
Cayman Islands | 18 November 2016

The Cayman Islands Court of Appeal recently provided some clarity on the ranking of priority in the liquidation of amounts owing to shareholders and former shareholders of a company operating as an open-ended investment fund. The decision has confirmed that Section 37(7)(a) of the Cayman Islands Companies Law applies where a shareholder has merely accrued the right to redeem his or her shares, but has not yet completed the redemption process prescribed by the company's articles.

Intellectual Property

New Cayman Islands IP regime
Cayman Islands | 11 September 2017

The Trademarks Law 2016, the Patents and Trademarks (Amendment) Law 2016 and the Design Rights Registration Law 2016 recently came into force, introducing a new IP regime in the Cayman Islands. The legislation establishes a standalone trademark registration system, prohibits the assertion of patent infringement in bad faith and allows existing UK and EU-registered design rights to be extended to the Cayman Islands, among other things.

Litigation

Think before you blink: court halts cross-border requests without consideration
British Virgin Islands | 23 October 2018

The BVI courts have again stepped in to ensure that proper thought and process is applied to requests made by foreign governmental bodies. In the first case of its kind to successfully challenge the exercise of the attorney general's powers under the Criminal Justice (International Cooperation) Act, the BVI High Court held that the attorney general is required to do more than rubber stamp the requests received under the act.

Stanford v Akers: asking a BVI court to reverse a liquidator's decision
British Virgin Islands | 09 October 2018

In a recent case, the BVI Court of Appeal addressed standing in the context of applications under Section 273 of the Insolvency Act 2003, whereby an aggrieved person can ask the courts to reverse or vary a liquidator's decision. The court held that, as a shareholder of a company in liquidation, the appellant was an outsider to the liquidation who had no legitimate interest that entitled him to standing under Section 273.

Revisiting costs awards – BVI Court of Appeal varies costs order based on US appeal decision
British Virgin Islands | 18 September 2018

In Fairfield Sentry Limited (In Liquidation) v Farnum Place LLC the BVI Court of Appeal varied a costs order based on a material change of circumstances – namely, a decision of the US Court of Appeals for the Second Circuit. The BVI court held that the US decision was a "material change of circumstances" which allowed it to vary the costs order by disallowing the costs of Farnum's expert.

Grand Court gives directions for dissenters' discovery in appraisal action
Cayman Islands | 11 September 2018

Following the recent Court of Appeal decision in Qunar, the Grand Court handed down written reasons for its further directions for dissenters' discovery in a Section 238 appraisal action. The reasons acknowledge that the Grand Court's approach to discovery has changed as a result of the Court of Appeal's decision, such that a "general requirement for automatic mutual disclosure" now applies.

Dishonesty is a serious allegation and must not be pleaded lightly: rolled-up plea is insufficient
Cayman Islands | 21 August 2018

The Grand Court has set out the requirements for pleading a cause of action of dishonest assistance and reaffirmed the established principles of the defence of estoppel. The decision provides welcome comfort to corporate entities with robust and thorough systems for detecting fraud.

Singapore and BVI courts cooperate against cross-border fraud
British Virgin Islands | 14 August 2018

The Singapore Court of Appeal recently ruled to reinstate and expand a Mareva injunction against fraudster defendants in a conspiracy claim, providing strong support for an earlier decision of the BVI Commercial Court in related proceedings. The decision demonstrates the importance of consistency between courts in multiple jurisdictions in complex cross-border cases.

Court of Appeal reaffirms that it will rarely reverse findings of fact
British Virgin Islands | 07 August 2018

The BVI Court of Appeal recently dismissed an appeal against the liquidators of BVI company Pioneer Freight Futures Company Limited and reaffirmed the established law regarding reversing findings of fact. The court held that it will intervene only in rare cases, such as when there is no evidence to support the conclusion, the conclusion was based on a misunderstanding of the evidence or the conclusion was one that no reasonable judge could have reached.

Trusts and disclosure: a recent lesson
British Virgin Islands | 31 July 2018

A recent BVI decision highlights the need for trustees to think carefully and, if in doubt, take advice before refusing an information request from a beneficiary. The consequences of getting this wrong (not least in potential personal cost exposure for the trustee) can be severe.

Security for costs – a foreign affair
Cayman Islands | 17 July 2018

During the early stages of litigation, a well-advised defendant will consider how to enforce a Cayman Islands court costs order in the foreign jurisdiction where the claimant's assets are located, and whether it should seek security from the claimant for the costs of doing so. The Court of Appeal has recently considered whether a foreign claimant should give security limited to the costs of enforcing an order in the foreign jurisdiction only or for the (much greater) amount of defending the appeal.

Court declines to restrain foreign trust proceedings
Cayman Islands | 03 July 2018

The recent Grand Court decision in T Co v AA, BB, CC, DD, EE (a minor) is a good reminder of the court's approach to service out of the jurisdiction and provides insight on the scope of jurisdiction clauses contained in trust instruments.

Freezing injunction: what is a good arguable case?
British Virgin Islands | 26 June 2018

The BVI Commercial Court has provided helpful guidance as to the threshold for a good arguable case, dismissing an application to discharge a worldwide freezing injunction obtained by a claimant. The court held that where there is a good arguable case that a defendant has acted fraudulently or dishonestly, or with "unacceptable low standards of morality giving rise to a feeling of uneasiness about the defendant", further evidence is often unnecessary to justify a freezing injunction.

Avoiding evasion: court takes pragmatic approach to serving uncooperative defendants abroad
British Virgin Islands | 19 June 2018

International litigation and asset recovery require the pursuit of defendants and their assets across borders; therefore, it is a routine aspect of BVI litigation for claimants to serve legal documents abroad. Two recent decisions should significantly decrease the delay in effecting service abroad and pave the way for a more efficient approach to service out in the future.

Getting schooled in Nord Anglia – extra safeguards for companies facing appraisal litigation
Cayman Islands | 12 June 2018

In Nord Anglia the justice made directions orders regarding the use of keyword searches, the number and scope of information requests, and the conduct of management meetings consistent with the orders made in Xiadu Life Technology. Further, the judgment will provide welcome safeguards for companies facing appraisal litigation in the Cayman Islands if adopted on a wider basis.

Shanda Games: Court of Appeal confirms timing for leave to appeal to Privy Council
Cayman Islands | 05 June 2018

Appeals to the Privy Council from the Court of Appeal are regulated in the Cayman Islands (Appeals to Privy Council) Order 1984. However, the order does not provide for how to determine the date of a decision. The Court of Appeal recently ruled that for the purposes of an application for leave to appeal to the Privy Council, time runs from the date on which an order is sealed or perfected, not the date on which the judgment is delivered.

Procedure for appeal counter notice clarified – it is a parasite
British Virgin Islands | 05 June 2018

A recent BVI Court of Appeal judgment was issued on a point rarely taken: is leave required to file a counter notice to an existing appeal? The full court found that once an appeal has been commenced with leave, the court's jurisdiction is engaged and the party wishing to cross-appeal may do so by counter notice without bringing a separate leave application. The court described a counter notice as being by its nature "parasitical on a pending appeal".

Court reaffirms high threshold for case management stays
Cayman Islands | 29 May 2018

In a recent case, a petition to wind up a company was issued by its majority shareholder. The minority shareholder – a Samoan entity – issued an application to stay the petition on the basis that there were related proceedings in Samoa, and argued that Samoa was the proper forum in which to argue these matters. The court refused to grant the stay, finding that the high burden imposed in stay applications of this type had not been met.

Tick, tock – the need to keep an eye on the clock in liquidator applications
British Virgin Islands | 22 May 2018

A recent Court of Appeal decision serves as a useful reminder to keep an eye on the clock when seeking the appointment of liquidators to a company in the British Virgin Islands. The decision makes clear that any extension must be expressly granted and legal practitioners must therefore keep an eye on the clock to avoid a deemed dismissal under Section 168 of the Insolvency Act.

Proceedings bowled out after unplayable delivery
Cayman Islands | 22 May 2018

The Grand Court of the Cayman Islands has set aside service of proceedings against a foreign defendant, concluding that the plaintiff had abused the court process in pursuing the proceedings and failed to establish that the court should exercise its jurisdiction over the defendant. The court held that the defendant's immunity as the employee of a New Zealand crown entity was an "unplayable delivery" for the plaintiff and weighed heavily against the exercise of the court's exorbitant jurisdiction.

Court of Appeal rules on dissenters' discovery
Cayman Islands | 15 May 2018

The Cayman Islands Court of Appeal has released its decision in the appeal of a directions order on the issue of whether dissenting shareholders in appraisal actions under Section 238 of the Companies Law are required to give discovery. The court emphasised the danger in forming a priori assumptions regarding relevance and concluded that there was insufficient justification for adopting an "extreme and unique" position of one-sided disclosure in Section 238 cases.

Costs of breaching an exclusive jurisdiction clause: BDO Cayman v Argyle Funds
Cayman Islands | 08 May 2018

A recent Grand Court of the Cayman Islands decision has confirmed that if a party pursues foreign proceedings in breach of a Cayman Islands exclusive jurisdiction (or similar) clause in a contract, that party faces the prospect of having to pay both the Cayman and foreign litigation costs of the counterparty on the indemnity basis.

Dissenting shareholders: judicial management and e-discovery
Cayman Islands | 01 May 2018

In a partial ruling in Xiaodu Life Technology, the Cayman Islands Grand Court ruled on the scope of the company's discovery and the use of keyword searches; whether the number of information requests should be limited; and the number and conduct of management meetings, including whether they should be open or without prejudice.

Substance of Aldi principles apply in British Virgin Islands
British Virgin Islands | 24 April 2018

The Commercial Division of the BVI Court has granted a strike out application on the grounds that the Aldi Stores Ltd v WSP Group plc principles – whereby a party which intends to bring a subsequent action against existing parties must raise the issue with the court – apply in the British Virgin Islands. It held that while the principles may not have been promulgated in this jurisdiction, litigants must put their cards on the table at an early stage or risk being held to have abused the court's process.

Guidelines adopted for communication and cooperation between courts
British Virgin Islands | 04 July 2017

The British Virgin Islands recently adopted new guidelines for communication and cooperation between courts in cross-border insolvency matters. The guidelines are designed primarily to enhance communication between courts, insolvency representatives and other parties in the context of global restructurings and insolvency. As a result of the increased efficiency, it is hoped that stakeholders will see a reduction in delays and costs.

Latin America focus: litigating trusts disputes in the British Virgin Islands
British Virgin Islands | 09 May 2017

The British Virgin Islands has long been hailed as a leading offshore jurisdiction for wealth management and asset protection among Latin American high-net-worth families and individuals. The outcome in a recent case augments the credibility of the British Virgin Islands as a jurisdiction in this regard. The case also highlights the strengths of the BVI-only Virgin Islands Special Trust Act trust structure.

Commercial Court appoints three new judges
British Virgin Islands | 24 January 2017

There have recently been three judicial appointments to the Commercial Court designed to increase the capacity of the court in 2017. The appointments should provide further momentum and expertise to the BVI Commercial Division and enhance the court's ability to deal with complex cases promptly and effectively.

Widening the net: court expands post-judgment Norwich Pharmacal jurisdiction
British Virgin Islands | 13 December 2016

A BVI court recently issued an important judgment in relation to the obligations of a registered agent to provide third-party disclosure to assist a foreign judgment creditor to trace assets. The court held that Norwich Pharmacal relief post-judgment in aid of enforcement is, in principle, available where there is reasonable suspicion that a disclosure defendant is involved in the wilful evasion of another's judgment debt and to assist in securing compliance with freezing orders, both domestic and foreign.

Private Client & Offshore Services

Receivers – gateway to unlocking disabled bearer shares
British Virgin Islands | 08 November 2018

In two recent BVI Court of Appeal decisions, disabled bearer shareholders were found to have a constitutional right not to be deprived of their property without compensation. It is now abundantly clear that even where BVI disabled bearer share companies are still without functionaries (ie, directors) to facilitate the traditional redemption of those shares, the court has flexible jurisdiction to appoint receivers to redeem those disabled shares, thereby ultimately restoring the companies to a functional state.

Are you wearing the right hat? Directors' duties revisited by Court of Appeal
British Virgin Islands | 25 October 2018

The Court of Appeal judgment in Antow Holdings Limited v Best Nation Investments Limited continues the development of the law regarding BVI directors' duties following the Independent Asset Management appeal, which established – for the first time in the British Virgin Islands – clear guidance regarding the proper purpose test. The decision is arguably at the extreme end of the spectrum, with the court describing the motives of the Best Nation directors as self-serving.

Think before you blink: court halts cross-border requests without consideration
British Virgin Islands | 18 October 2018

The BVI courts have again stepped in to ensure that proper thought and process is applied to requests made by foreign governmental bodies. In the first case of its kind to successfully challenge the exercise of the attorney general's powers under the Criminal Justice (International Cooperation) Act, the BVI High Court held that the attorney general is required to do more than rubber stamp the requests received under the act.

Court appoints receiver under Arbitration Act to preserve assets pending arbitration award
British Virgin Islands | 11 October 2018

A BVI court has appointed Grant Thornton as a receiver over a BVI company under Section 43 of the Arbitration Act 2013 in order to preserve the value of the company pending the determination of foreign arbitration proceedings. The decision illustrates the effectiveness of the interim relief provided under the Arbitration Act to preserve assets against which an arbitration award will be enforced.

Stanford v Akers: asking a BVI court to reverse a liquidator's decision
British Virgin Islands | 04 October 2018

In a recent case, the BVI Court of Appeal addressed standing in the context of applications under Section 273 of the Insolvency Act 2003, whereby an aggrieved person can ask the courts to reverse or vary a liquidator's decision. The court held that, as a shareholder of a company in liquidation, the appellant was an outsider to the liquidation who had no legitimate interest that entitled him to standing under Section 273.

Revisiting costs awards – BVI Court of Appeal varies costs order based on US appeal decision
British Virgin Islands | 20 September 2018

In Fairfield Sentry Limited (In Liquidation) v Farnum Place LLC the BVI Court of Appeal varied a costs order based on a material change of circumstances – namely, a decision of the US Court of Appeals for the Second Circuit. The BVI court held that the US decision was a "material change of circumstances" which allowed it to vary the costs award by disallowing the costs of Farnum's expert.

Grand Court gives directions for dissenters' discovery in appraisal action
Cayman Islands | 13 September 2018

Following the recent Court of Appeal decision in Qunar, the Grand Court handed down written reasons for its further directions for dissenters' discovery in a Section 238 appraisal action. The reasons acknowledge that the Grand Court's approach to discovery has changed as a result of the Court of Appeal's decision, such that a "general requirement for automatic mutual disclosure" now applies.

Appointing liquidators after alleged loss of substratum
British Virgin Islands | 06 September 2018

The Court of Appeal recently considered the test for appointing liquidators to a company following an alleged loss of substratum. The case provides insight on the principles of loss of substratum, particularly in a case where a company's object is not prescribed by its memorandum and articles of association.

Discretionary beneficiaries' rights to trust information
British Virgin Islands | 30 August 2018

In separate but related proceedings, the BVI courts have permitted an applicant to inspect documentation relating to the liquidation of certain BVI companies. The decisions solidify the open justice policy and highlight the importance of allowing beneficiaries to oversee trustees' activities in order to ensure that the trust property is properly managed and that trustees can be held to account accordingly.

Dishonesty is a serious allegation and must not be pleaded lightly: rolled-up plea is insufficient
Cayman Islands | 23 August 2018

The Grand Court has set out the requirements for pleading a cause of action of dishonest assistance and reaffirmed the established principles of the defence of estoppel. The decision provides welcome comfort to corporate entities with robust and thorough systems for detecting fraud.

Singapore and BVI courts cooperate against cross-border fraud
British Virgin Islands | 16 August 2018

The Singapore Court of Appeal recently ruled to reinstate and expand a Mareva injunction against fraudster defendants in a conspiracy claim, providing strong support for an earlier decision of the BVI Commercial Court in related proceedings. The decision demonstrates the importance of consistency between courts in multiple jurisdictions in complex cross-border cases.

Court of Appeal reaffirms that it will rarely reverse findings of fact
British Virgin Islands | 09 August 2018

The BVI Court of Appeal recently dismissed an appeal against the liquidators of BVI company Pioneer Freight Futures Company Limited and reaffirmed the established law regarding reversing findings of fact. The court held that it will intervene only in rare cases, such as when there is no evidence to support the conclusion, the conclusion was based on a misunderstanding of the evidence or the conclusion was one that no reasonable judge could have reached.

Trusts and disclosure: a recent lesson
British Virgin Islands | 02 August 2018

A recent BVI decision highlights the need for trustees to think carefully and, if in doubt, take advice before refusing an information request from a beneficiary. The consequences of getting this wrong (not least in potential personal cost exposure for the trustee) can be severe.

AHAB v Saad – importance of a particularised and principled tracing claim
Cayman Islands | 26 July 2018

In Ahmad Hamad Algosaibi & Brothers Company (AHAB) v Saad, the Grand Court found that AHAB's claims, which attempted to trace its funds into the hands of defendant SIFCO5, were "unparticularised and unprincipled". Further, AHAB was unsuccessful in establishing that funds representing traceable proceeds from the Money Exchange reached SIFCO5 or in articulating any discernible cause of action against SIFCO5 in respect of such funds.

Security for costs – a foreign affair
Cayman Islands | 19 July 2018

During the early stages of litigation, a well-advised defendant will consider how to enforce a Cayman Islands court costs order in the foreign jurisdiction where the claimant's assets are located, and whether it should seek security from the claimant for the costs of doing so. The Court of Appeal has recently considered whether a foreign claimant should give security limited to the costs of enforcing an order in the foreign jurisdiction only or for the (much greater) amount of defending the appeal.

Grand Court dismisses multibillion-dollar fraud claims in one of largest Ponzi schemes in history
Cayman Islands | 12 July 2018

In a landmark ruling, the Grand Court emphatically dismissed a multibillion-dollar claim in a case involving allegations of fraud arising from one of the largest corporate collapses of the financial crisis. The case has showcased the court's ability to manage high-profile large-scale litigation, demonstrating especially the quality of the Cayman Islands judiciary and the court's ability to use cutting-edge technology, as well as the resources and flexibility to manage a year-long, multi-jurisdictional trial.

Sixtieth anniversary of New York Convention – time to choose BVI arbitration and enforcement
British Virgin Islands | 05 July 2018

The British Virgin Islands is a pro-arbitration jurisdiction. Under the Arbitration Act, with regard to both New York Convention awards and non-New York Convention awards, the party against which the award has been made can make representation to the court regarding a refusal to enforce. An example of the British Virgin Islands' pro-enforcement approach can be seen in Belport Development Limited v Chimichanga Corporation.

Court declines to restrain foreign trust proceedings
Cayman Islands | 28 June 2018

The recent Grand Court decision in T Co v AA, BB, CC, DD, EE (a minor) is a good reminder of the court's approach to service out of the jurisdiction and provides insight on the scope of jurisdiction clauses contained in trust instruments.

Freezing injunction: what is a good arguable case?
British Virgin Islands | 21 June 2018

The BVI Commercial Court has provided helpful guidance as to the threshold for a good arguable case, dismissing an application to discharge a worldwide freezing injunction obtained by a claimant. The court held that where there is a good arguable case that a defendant has acted fraudulently or dishonestly, or with "unacceptable low standards of morality giving rise to a feeling of uneasiness about the defendant", further evidence is often unnecessary to justify a freezing injunction.

Avoiding evasion: court takes pragmatic approach to serving uncooperative defendants abroad
British Virgin Islands | 14 June 2018

International litigation and asset recovery require the pursuit of defendants and their assets across borders; therefore, it is a routine aspect of BVI litigation for claimants to serve legal documents abroad. Two recent decisions should significantly decrease the delay in effecting service abroad and pave the way for a more efficient approach to service out in the future.

No armchair liquidators – court confirms appointment of provisional liquidators to Swiss company
British Virgin Islands | 07 June 2018

In the latest judgment regarding the DPH liquidation, the BVI Court of Appeal upheld the appointment of BVI provisional liquidators in respect of a Swiss company and clarified that evidence of dissipation of assets (in the Mareva sense) may not be a pre-condition to the appointment of provisional liquidators.

Getting schooled in Nord Anglia – extra safeguards for companies facing appraisal litigation
Cayman Islands | 07 June 2018

In Nord Anglia the justice made directions orders regarding the use of keyword searches, the number and scope of information requests, and the conduct of management meetings consistent with the orders made in Xiadu Life Technology. Further, the judgment will provide welcome safeguards for companies facing appraisal litigation in the Cayman Islands if adopted on a wider basis.

Shanda Games: Court of Appeal confirms timing for leave to appeal to Privy Council
Cayman Islands | 31 May 2018

Appeals to the Privy Council from the Court of Appeal are regulated in the Cayman Islands (Appeals to Privy Council) Order 1984. However, the order does not provide for how to determine the date of a decision. The Court of Appeal recently ruled that for the purposes of an application for leave to appeal to the Privy Council, time runs from the date on which an order is sealed or perfected, not the date on which the judgment is delivered.

Procedure for appeal counter notice clarified – it is a parasite
British Virgin Islands | 31 May 2018

A recent BVI Court of Appeal judgment was issued on a point rarely taken: is leave required to file a counter notice to an existing appeal? The full court found that once an appeal has been commenced with leave, the court's jurisdiction is engaged and the party wishing to cross-appeal may do so by counter notice without bringing a separate leave application. The court described a counter notice as being by its nature "parasitical on a pending appeal".

Tick, tock – the need to keep an eye on the clock in liquidator applications
British Virgin Islands | 24 May 2018

A recent Court of Appeal decision serves as a useful reminder to keep an eye on the clock when seeking the appointment of liquidators to a company in the British Virgin Islands. The decision makes clear that any extension must be expressly granted and legal practitioners must therefore keep an eye on the clock to avoid a deemed dismissal under Section 168 of the Insolvency Act.

Court reaffirms high threshold for case management stays
Cayman Islands | 24 May 2018

In a recent case, a petition to wind up a company was issued by its majority shareholder. The minority shareholder – a Samoan entity – issued an application to stay the petition on the basis that there were related proceedings in Samoa and held that Samoa was the proper forum in which to argue these matters. The court refused to grant the stay, finding that the high burden imposed in stay applications of this type had not been met.

Court strikes out passing-off claim in relation to goodwill held outside British Virgin Islands
British Virgin Islands | 17 May 2018

Claims of passing off are rare in the British Virgin Islands and a recent attempt to bring a BVI action in relation to goodwill held outside the jurisdiction has failed. The court examined the law and relevant English authorities on the tort of passing off. It opined that goodwill is governed by territoriality and that in order to succeed, the claimant must prove that it has goodwill in the form of customers in the jurisdiction in which the suit is undertaken.

Proceedings bowled out after unplayable delivery
Cayman Islands | 17 May 2018

The Grand Court of the Cayman Islands recently set aside service of proceedings against a foreign defendant, concluding that the plaintiff had abused the court process in pursuing the proceedings and failed to establish that the court should exercise its jurisdiction over the defendant. The court held that the defendant's immunity as the employee of a New Zealand crown entity was an "unplayable delivery" for the plaintiff and weighed heavily against the exercise of the court's exorbitant jurisdiction.

Court of Appeal rules on dissenters' discovery
Cayman Islands | 10 May 2018

It has long been argued that no sui generis category of litigants is exempt from the general rules of discovery, which aim to protect the integrity of the litigation process. The Cayman Islands Court of Appeal recently released its decision in the appeal of a directions order, in which the contested issue was whether dissenting shareholders in appraisal actions under Section 238 of the Companies Law are required to give discovery.

Costs of breaching an exclusive jurisdiction clause: BDO Cayman v Argyle Funds
Cayman Islands | 03 May 2018

A recent Grand Court of the Cayman Islands decision has confirmed that if a party pursues foreign proceedings in breach of a Cayman Islands exclusive jurisdiction (or similar) clause in a contract, that party faces the prospect of having to pay both the Cayman and foreign litigation costs of the counterparty on the indemnity basis.

Dissenting shareholders: judicial management and e-discovery
Cayman Islands | 26 April 2018

In a partial ruling in Xiaodu Life Technology, the Cayman Islands Grand Court ruled on the scope of the company's discovery and the use of keyword searches; whether the number of information requests should be limited; and the number and conduct of management meetings, including whether they should be open or without prejudice.

Primeo: should a liquidator alter register of members?
Cayman Islands | 19 April 2018

The Cayman Islands Court of Appeal has held that a liquidator cannot use his or her statutory power pursuant to Section 112(2) of the Companies Law to rectify the register of members where the effect would be to override investors' proprietary rights. It held that the section does not aim to provide for substitution of incorrect net asset value if, despite its incorrectness, it has been calculated in accordance with a member's contractual rights.

Substance of Aldi principles apply in British Virgin Islands
British Virgin Islands | 19 April 2018

The Commercial Division of the BVI Court has granted a strike out application on the grounds that the Aldi Stores Ltd v WSP Group plc principles – whereby a party which intends to bring a subsequent action against existing parties must raise the issue with the court – apply in the British Virgin Islands. It held that while the principles may not have been promulgated in this jurisdiction, litigants must put their cards on the table at an early stage or risk being held to have abused the court's process.

Important changes to regulations and compliance for investment funds
Cayman Islands | 15 March 2018

The recent changes that have been made to the anti-money laundering regime will bring the Cayman Islands into line with international best practice and are a welcome update to the territory's financial services landscape. In reality, the changes will not affect the majority of investment funds using the jurisdiction, but updates to documentation and procedures may be required.

Beneficial ownership regime: some companies now in scope
Cayman Islands | 25 January 2018

The Cayman Islands has amended the beneficial ownership register regime for Cayman companies and limited liability companies, meaning that some previously out-of-scope companies are now in scope and must maintain a register. In addition, all out-of-scope companies must now file a written confirmation of the basis for their exemption with their corporate services provider, and these providers must regularly file the received beneficial ownership information with the competent authority.

Tax information exchange: an overview
British Virgin Islands | 25 January 2018

The BVI tax information exchange system is largely modelled on international principles developed by the Organisation for Economic Cooperation and Development and is split into two types of regime. The 'automatic' exchange of information regime requires financial institutions to exchange formulistic data about the accounts of foreign taxpayers, while the 'on request' regime deals with specific and potentially in-depth investigations into the affairs of named taxpayers with offshore or international holdings.

New developments in litigation funding
Cayman Islands | 18 January 2018

A recent Grand Court of the Cayman Islands ruling represents a significant development for the jurisdiction, opening the door to third-party funding of litigation in the Cayman Islands. However, while the door has been opened, a plaintiff which seeks to commence litigation in the Cayman Islands with funds provided under a funding agreement will need to seek the court's approval of the particular agreement in question.

Court of Appeal provides guidance on directors' powers
British Virgin Islands | 18 January 2018

A recent Court of Appeal ruling provided guidance on directors' powers after considering whether a fresh issuance of shares by directors which altered the balance of voting power between the shareholders was done for a proper purpose. The court held that directors should not issue shares in a manner that could affect the balance of power between groups of shareholders or create new majorities, irrespective of whether the old or new majority have a proprietary interest in the fund.

Anti-money Laundering Regulations for unregulated investment and insurance entities to take effect
Cayman Islands | 14 December 2017

Under new anti-money laundering legislation, the list of activities classed as relevant financial businesses has been expanded. Unregulated investment funds and some insurance entities have now been given a grace period until May 31 2018 to establish anti-money laundering compliance programmes. This is a welcome move, particularly for unregulated investment funds which were not bound by the preceding regulations and therefore may not have policies and procedures in place.

Launching an ICO in British Virgin Islands
British Virgin Islands | 14 December 2017

Interest in the setting up and distribution of initial coin offerings (ICOs) in the British Virgin Islands and other offshore locations has increased rapidly during 2017, and this is expected to continue. No ICO or blockchain-specific rules or guidelines have yet been issued by the government or regulator; however, there are several important issues for parties in the British Virgin Islands to consider, including the key laws and regulations surrounding the issue.

Foundation Companies Law enacted
Cayman Islands | 23 November 2017

The Foundation Companies Law 2017, which recently came into force, approaches the creation of a foundation company in such a way that it may consequently be established for any lawful purpose. The foundation company shares many of its features with other types of Cayman company and fits seamlessly into the Cayman Islands' legal regime. It will therefore have the benefit of a considerable body of case law on companies.

New Anti-money Laundering Regulations come into force
Cayman Islands | 16 November 2017

The government recently adopted updated Anti-money Laundering Regulations. The regulations demonstrate the Cayman Islands' ongoing commitment to comply with the highest international standards on combating money laundering and terrorist financing and aim to ensure consistency with the Financial Action Task Force 2012 recommendations. The move is part of an overall update of the territory's anti-money laundering regime.

Structuring an ICO through the Cayman Islands
Cayman Islands | 02 November 2017

It seems that 2017 will be remembered as the year of the initial coin offering (ICO). The Cayman Islands is witnessing an upsurge in ICO-related business and structuring an ICO through the territory remains an attractive proposition. However, ICO-specific guidance is yet to be issued by the government or the regulator, and a number of legal uncertainties remain. Existing statutory and regulatory regimes must therefore be considered when structuring an ICO.

BVI continuations and discontinuations – an overview
British Virgin Islands | 26 October 2017

The ability to continue a foreign company as a BVI company or to continue a BVI company as a company under the laws of another jurisdiction quickly and seamlessly is just one example of the many flexible features of the Business Companies Act 2004. This is particularly useful in the context of corporate reorganisations, and counsel should be aware of the process and requirements for continuations and discontinuations.

Beneficial ownership regime – an overview
Cayman Islands | 19 October 2017

Under the Cayman Islands beneficial ownership legislation, certain Cayman companies are required to maintain details of their beneficial owners and relevant legal entities on a beneficial ownership register. Companies should determine whether they are within the scope of the legislation and familiarise themselves with the obligations for in-scope companies and those who hold interests in them.

New Cayman Islands IP regime
Cayman Islands | 07 September 2017

The Trademarks Law 2016, the Patents and Trademarks (Amendment) Law 2016 and the Design Rights Registration Law 2016 recently came into force, introducing a new IP regime in the Cayman Islands. The legislation establishes a standalone trademark registration system, prohibits the assertion of patent infringement in bad faith and allows existing UK and EU-registered design rights to be extended to the Cayman Islands, among other things.

BVI exempts certain categories of people from work permit requirements
British Virgin Islands | 07 September 2017

The government recently enacted the Labour Code (Work Permit Exemption) Order 2017, which excludes certain categories of people from the need to obtain work permits. In particular, the exemption for directors visiting the British Virgin Islands for board meetings supports the territory's position as the leading corporate domicile in the global economy.

Introduction to automatic exchange of information for investment funds
Cayman Islands | 31 August 2017

As Cayman Islands entities are not directly subject to the so-called 'automatic exchange of information' agreements, the government has introduced legislation to implement these under the Tax Information Authority Law. Guidance notes have also been issued, providing details of the notification, reporting and ongoing obligations that apply, as well as a useful reminder of the differences between the Foreign Account Tax Compliance Act and the Common Reporting Standard.

Pacific Andes saga: forum shopping, Chapter 11 and just and equitable winding up
British Virgin Islands | 31 August 2017

'Forum shopping' is the practice of choosing the most favourable jurisdiction in which to bring a claim. In principle, there is nothing wrong in seeking to have a case heard in the forum which is most favourable to the client. However, it can lead to some fierce jurisdictional battles, particularly in insolvency, where the choice between debtor and creditor-friendly procedures can be stark. The Commercial Court has been wrestling with this situation over the past 10 months.

Shareholder activism: considerations for BVI companies
British Virgin Islands | 24 August 2017

As the world's leading incorporation vehicles, BVI companies are listed on exchanges and conduct business around the world and may therefore expect to be occasionally involved in activist campaigns or other challenges from shareholders. However, many investors and their advisers may be less familiar with BVI company law than their domestic legislation.

Government raises charter cruising permit fees
British Virgin Islands | 17 August 2017

The government recently enacted two measures regarding the cruising permit fees that each charter boat must pay while carrying paying passengers in the British Virgin Islands. Under the Cruising Permit (Amendment) Act, boats will now be classified as either home-based or foreign-based charter boats, with set fees for each classification. The Statutory Rates, Fees and Charges (Amendment of Schedule) Order 2017 confirms these fees for internal government purposes.

Legislation to change work permit fee calculation enacted
British Virgin Islands | 10 August 2017

The government recently enacted a measure regarding the fees payable for work permits in the British Virgin Islands. The amendment order replaces the employee flat fee system with an incremental calculation based on salary bands, which now generally assume a higher gross salary. It also replaces most exceptions to the previous scheme, keeping only those for domestic workers.

New beneficial ownership regime takes effect
British Virgin Islands | 03 August 2017

The British Virgin Islands has enacted legislation to implement a networked database of beneficial ownership interests in companies incorporated or domiciled in the jurisdiction. The Beneficial Ownership Secure Search System aims to ensure that the British Virgin Islands can comply with its obligations under the UK Exchange of Notes Agreement, which modernises the way in which BVI competent authorities may gain access to beneficial ownership information of BVI companies.

Getting financial services licensees in shape for the Caribbean FATF inspection
British Virgin Islands | 20 July 2017

The British Virgin Islands is expected to undergo its fourth round of mutual evaluation by the Caribbean Financial Action Task Force in 2018, based on the Financial Action Task Force's International Standards on Combating Money Laundering and the Financing of Terrorism and Proliferation. In preparation, the Financial Services Commission has commenced a preliminary exercise to ensure that relevant persons have complied with the international standards requirements.

FSC signs multilateral memorandum with GIFCS
British Virgin Islands | 13 July 2017

The BVI Financial Services Commission recently signed a multilateral memorandum of understanding between members of the Group of International Financial Centre Supervisors. The objective of the memorandum is to ensure clarity and effective regulatory cooperation between the authorities responsible for supervising the banking sector in signatory jurisdictions.

Guidelines adopted for communication and cooperation between courts
British Virgin Islands | 29 June 2017

The British Virgin Islands recently adopted new guidelines for communication and cooperation between courts in cross-border insolvency matters. The guidelines are designed primarily to enhance communication between courts, insolvency representatives and other parties in the context of global restructurings and insolvency. As a result of the increased efficiency, it is hoped that stakeholders will see a reduction in delays and costs.

Automatic exchange of information – further update
Cayman Islands | 29 June 2017

The Tax Information Authority (TIA) recently issued further updates on the compliance obligations of Cayman financial institutions. A number of key dates and developments have changed since then, including with regard to TIA registration, the 2017 reportable jurisdictions, liquidation reporting obligations and the phasing out of the UK Crown Dependencies and Overseas Territories International Tax Compliance Regulations.

New beneficial ownership regime to take effect
Cayman Islands | 22 June 2017

Following lengthy discussions with the UK authorities, the government recently approved new legislation to introduce beneficial ownership registers for certain Cayman companies and limited liability companies. Companies which are subject to direct or indirect regulatory oversight are likely to be exempt from the requirements. All Cayman companies should now review whether they will be required to maintain a beneficial ownership register.

New law gives FSC discretion to restrict publication of enforcement actions
British Virgin Islands | 08 June 2017

The Financial Services Commission Act 2001 was recently amended. The key revisions relate to the routine publication of fines and penalties levied by the Financial Services Commission (FSC). For example, the FSC now has the discretion to determine the types of case where publication of the enforcement may be restricted.

Latin America focus: litigating trusts disputes in the British Virgin Islands
British Virgin Islands | 04 May 2017

The British Virgin Islands has long been hailed as a leading offshore jurisdiction for wealth management and asset protection among Latin American high-net-worth families and individuals. The outcome in a recent case augments the credibility of the British Virgin Islands as a jurisdiction in this regard. The case also highlights the strengths of the BVI-only Virgin Islands Special Trust Act trust structure.

Amended anti-money laundering and terrorist financing code gazetted
British Virgin Islands | 27 April 2017

Schedule 2 of the Anti-money Laundering and Terrorist Financing Code of Practice 2008 sets out a list of jurisdictions with laws and regulations similar to those of the British Virgin Islands. The principal advantage of relying on Schedule 2 is that business coming from recognised jurisdictions will generally attract the application of reduced client due diligence measures.

CRS notification and reporting deadlines extended
Cayman Islands | 06 April 2017

The 2017 deadlines for notification and reporting obligations under the Common Reporting Standard regulations will be extended by two months. Cayman reporting financial institutions will not have notification or reporting obligations under the UK Crown Dependency and Overseas Territories International Tax Compliance Regulations from 2017 onwards; however, obligations under the US Foreign Account Tax Compliance Act remain unchanged.

Cayman Islands to introduce LLPs
Cayman Islands | 30 March 2017

Draft legislation was recently published to introduce the limited liability partnership (LLP) as a new partnership vehicle in the Cayman Islands. The bill provides for the formation, registration and operation of an LLP as an entity with limited liability and legal personality separate from its partners. The bill also provides for the conversion of existing Cayman partnerships into LLPs and the continuation of foreign LLPs into the Cayman Islands.

Introduction of beneficial ownership registers proposed
Cayman Islands | 16 March 2017

The government recently published draft legislation which, when adopted, will require Cayman companies to maintain beneficial ownership registers and for the information in the registers to be made automatically available to the Cayman Islands competent authority through a centralised beneficial ownership platform. The legislation is now expected to pass through the usual approval process in the Legislative Assembly.

Government introduces bill to establish ITA as a statutory body
British Virgin Islands | 02 March 2017

New legislative proposals aim to establish the BVI International Tax Authority (ITA) as a fully fledged independent government institution, giving it autonomy over the performance of its functions. Key features of the bill include the implementation of a board of directors and the provision of immunity to the ITA and its officers from suit in relation to the performance of their functions, duties and powers.

Dissenting shareholder claims – video
Cayman Islands | 23 February 2017

Mergers are a favoured method of takeover or restructuring in the Cayman Islands. The recent Grand Court decision in Integra – discussed in this video – provides much-needed guidance on what considerations should be taken into account in determining fair value, which is likely to provide comfort to parties seeking to explore the Cayman Islands merger framework.

Amended CRS regulations adopted
Cayman Islands | 16 February 2017

The Cayman Islands' commitment to international transparency standards has been reinforced by its adoption of amended Common Reporting Standards (CRS) regulations. All Cayman financial institutions must review their existing CRS compliance policies and update them to make sure that they have suitable policies and procedures in place, and that they are correctly registered and able to file any nil returns needed in May 2017.

Government increases taxes on tobacco, alcohol and hotel accommodation
British Virgin Islands | 02 February 2017

The government recently enacted two revenue-increasing measures: the Customs Management and Duties (Amendment of Schedule 4) Order 2016 and the Hotel Accommodation (Taxation) (Amendment) Act 2016. The order raises the duty on alcohol and tobacco, while the act seeks to increase the existing hotel accommodation tax to bring the British Virgin Islands into line with other premier holiday destinations in the Caribbean, although the rate is still less than that in many US destinations.

Commercial Court appoints three new judges
British Virgin Islands | 26 January 2017

There have recently been three judicial appointments to the Commercial Court designed to increase the capacity of the court in 2017. The appointments should provide further momentum and expertise to the BVI Commercial Division and enhance the court's ability to deal with complex cases promptly and effectively.

FSC issues new guidelines on money services business
British Virgin Islands | 12 January 2017

The Financial Services Commission recently published a guide to ensure that money service business providers and the wider industry are protected by helping to sensitise various stakeholders on matters surrounding money laundering, terrorist financing and other forms of financial crime. The guide touches on customer due diligence, the implementation of internal controls, suspicious activity reports and record keeping, and outlines relevant legislation.

New trusts legislation
Cayman Islands | 12 January 2017

The Trusts (Amendment) Law 2016, which was recently gazetted, has amended and modernised the existing Cayman Islands Trusts Law. Along with provisions addressing certain powers and the appointment and discharge of trustees, the law introduces a number of retrospective provisions, covering trustees, Special Trust Alternative Regime trusts and charitable purposes.

New enforcement powers for CIMA
Cayman Islands | 15 December 2016

The Cayman Islands government is set to grant the Cayman Islands Monetary Authority (CIMA) new enforcement powers under an amendment to the Monetary Authority Law. If passed in its existing form, the Monetary Authority (Amendment) Bill 2016 will allow CIMA to impose fines for breaches of regulatory laws by licensed or regulated individuals or entities.

Widening the net: court expands post-judgment Norwich Pharmacal jurisdiction
British Virgin Islands | 08 December 2016

A BVI court recently issued an important judgment in relation to the obligations of a registered agent to provide third-party disclosure to assist a foreign judgment creditor to trace assets. The court held that Norwich Pharmacal relief post-judgment in aid of enforcement is, in principle, available where there is reasonable suspicion that a disclosure defendant is involved in the wilful evasion of another's judgment debt and to assist in securing compliance with freezing orders, both domestic and foreign.

New guidance notes on CRS requirements released
British Virgin Islands | 01 December 2016

The British Virgin Islands has released guidance notes on the requirements of the Common Reporting Standards (CRS) as implemented in the British Virgin Islands. This is welcome news as, until now, there has been no BVI-specific guidance. The additional guidance has provided certainty on some key points, as well as a wealth of commentary and guidance on the specific interpretation of the CRS.

An unusual choice? BVI restricted purposes company
British Virgin Islands | 17 November 2016

Restricted purposes companies offer certain advantages and are a valuable facet of the British Virgin Island's offerings to international finance. While restricted purposes companies are intentionally niche and specialised, they prove that there remains a place in the contemporary legal world for more traditional principles of common law, such as restricted purposes and constructive notice.

Court clarifies ranking of shareholder claim
Cayman Islands | 17 November 2016

The Cayman Islands Court of Appeal recently provided some clarity on the ranking of priority in the liquidation of amounts owing to shareholders and former shareholders of a company operating as an open-ended investment fund. The decision has confirmed that Section 37(7)(a) of the Cayman Islands Companies Law applies where a shareholder has merely accrued the right to redeem his or her shares, but has not yet completed the redemption process prescribed by the company's articles.

Green light for liquidators to draw interim payments without fee approval
British Virgin Islands | 10 November 2016

The BVI Commercial Court recently clarified whether the BVI Insolvency Act 2003 provides a basis for liquidators to draw fees on account before having formal approval from either a creditors' committee or the court. The court also specifically provided that newly appointed liquidators can draw payments of up to 80% on account of their reasonable remuneration and expenses on an interim basis without the need to obtain prior approval from the creditors' committee or the court.

Five questions lenders should ask before contracting with BVI counterparties
British Virgin Islands | 03 November 2016

Lenders of BVI contracting parties are often concerned with whether the company with which they are contracting has the capacity to enter into the transaction. However, there are a number of other questions which prudent lenders should address, and they would be wise to seek specialist advice before entering into contractual arrangements with a BVI company.

BVI leave requirements in derivative actions by foreign companies
British Virgin Islands | 27 October 2016

The BVI Commercial Court recently considered a claim for costs of a discontinued strike-out application, which was brought by the defendants as part of an ongoing multi-jurisdictional family dispute. The claimant's substantive action in the British Virgin Islands involved derivative proceedings, which were brought on behalf of a foreign company, for the recovery of funds which the defendants were alleged to have wrongfully paid to another entity.

Key considerations for using BVI structures in art-secured lending
British Virgin Islands | 13 October 2016

The growth of the art-secured lending market has been accompanied by a parallel increase in the array of financial products and services specifically crafted for art collectors and dealers. As companies incorporated in the British Virgin Islands are among the most popular offshore holding structures in the world, it is not uncommon for art to be owned through BVI structures. For both borrowers and lenders, there are many advantages in doing so.

E-signatures: flexibility in cross-border transactions
British Virgin Islands | 06 October 2016

The European Union's legal framework for e-signatures recently came into effect via the eIDAS Regulation. The British Virgin Islands was one of the first jurisdictions to recognise the validity of e-signatures and electronic records. Along with other BVI statutory developments, the BVI Electronic Transactions Act 2001 provides flexibility in cross-border transactions involving BVI companies.

Brexit: the fall-out
British Virgin Islands | 29 September 2016

Once the United Kingdom has left the European Union, the British Virgin Islands will cease to be one of the European Union's overseas countries and territories. Despite Brexit's uncertainties, the good news for the British Virgin Islands is that it has carefully drafted legislation and a stable legal system, so the consequences of Brexit will be minor from a legal and constitutional perspective.

Iran sanctions to be repealed in line with EU/UK position
British Virgin Islands | 22 September 2016

Under the Joint Comprehensive Plan of Action, the European Union and the United Kingdom agreed to terminate or relax nuclear-related economic and financial sanctions, including related designations. Once the BVI 2011 direction is repealed, the British Virgin Islands' position will be further aligned with that of the United Kingdom and be in keeping with the relaxation of the Iran restrictions.

Costs clarity: Commercial Court finds foreign lawyers' costs generally recoverable
British Virgin Islands | 01 September 2016

The BVI Commercial Court recently handed down new guidance which clarifies its position on the recoverability of foreign lawyers' costs and underlines its clear intent to accommodate and provide practical solutions for international litigation in the British Virgin Islands. The decision will give considerable comfort to those already engaged in matters before the court and to those advising on launching proceedings in the British Virgin Islands.

At what costs? Ruling raises questions about BVI Legal Profession Act
British Virgin Islands | 23 June 2016

The Court of Appeal was recently asked to adjudicate on the costs of a foreign firm that had assisted BVI practitioners in an application for security for costs. The respondents objected to these costs being recovered, on the basis that the firm's lawyers were not licensed to practise BVI law under the Legal Profession Act. The court agreed. However, in seeking to settle the law in this area, the decision has opened up further questions.

Extension of compliance period under AML Regulations 2008
British Virgin Islands | 26 May 2016

The Anti-money Laundering (AML) (Amendment) Regulations 2015 recently came into effect, amending the AML Regulations 2008. The schedule to the new regulations provides a date of compliance for every 'relevant person' conducting 'relevant business', subject to any extension of time sought. The Financial Services Commission recently issued guidance notes which modify the compliance date and outline the conditions of applying for an extension.

Appointment of receivers in the British Virgin Islands
British Virgin Islands | 28 April 2016

The receiver arguably represents the most powerful weapon in the armoury available for asset tracing in the British Virgin Islands. As BVI companies are often used as holding vehicles, using a receiver to take control of the corporate structure and move 'downstream' to the assets is a particularly potent strategy. Recent developments in case law have made this remedy more widely available.

Black Swan: standalone injunctions in support of foreign proceedings
British Virgin Islands | 21 April 2016

BVI courts have jurisdiction to grant standalone injunctions (or Black Swan orders) in support of foreign proceedings. These are 'standalone' in the sense that an injunction order can be made where no other substantive relief is sought within the jurisdiction. A Black Swan order is a helpful tool in support of proceedings where an applicant or claimant has instigated – or intends to instigate – proceedings in a foreign jurisdiction.

Fairfield Sentry – new guidance from BVI Court
British Virgin Islands | 31 March 2016

The Fairfield Sentry saga continued recently with a new BVI judgment concerning the status of the related US Bankruptcy Court proceedings. The applicants were former registered shareholders of the Fairfield Sentry and Fairfield Lambda BVI feeder funds which had redeemed their shares before Bernard Madoff's fraud was exposed. They sought to prevent the liquidators of the funds from recovering their redemption payments in the US proceedings.

Exercise of discretion to wind up company not "head-counting exercise"
British Virgin Islands | 24 March 2016

The BVI High Court recently confirmed that the exercise of the court's discretion whether to make, dismiss or adjourn an order appointing liquidators does not necessarily depend on the wishes of the majority of creditors – even when a vast majority of unsecured creditors both in number and by value oppose the appointment of liquidators.

Key points for lenders and borrowers: snapshot of changes to BVI law in 2015
British Virgin Islands | 03 March 2016

The British Virgin Islands' reputation as the leading offshore jurisdiction is well earned and it is dedicated to maintaining its status as a creditor-friendly and commercially flexible jurisdiction. The developments of 2015 are the latest example of its evolution, and include provisions of the BVI Business Companies (Amendment) Act 2015 that relate to registered agents, liquidation, continuing out, execution of deeds and private registers of charges.

FSC recognises overseas stock and commodities exchanges
British Virgin Islands | 25 February 2016

The Financial Services Commission (FSC) recently issued the Regulatory Code (Recognised Exchanges) Notice under powers set out in the Regulatory Code. The recognised exchanges listed include some of the most important stock and commodity exchanges in the world. Companies listed on recognised exchanges can benefit from light-touch know-your-customer due diligence processes when dealing with BVI-regulated credit or financial institutions.

Arbitration agreements and insolvency proceedings
British Virgin Islands | 11 February 2016

Two recent decisions examined attempts by debtors to rely on the mandatory stay provisions in the BVI arbitration legislation in order to avoid liquidation. On both occasions the court came down decisively against the debtors, which were unable to show a substantive dispute to the debt. The decisions have brought clarity to the situation and closed the door on a potentially abusive practice.

Islamic finance continues to grow in the British Virgin Islands
British Virgin Islands | 04 February 2016

As the Islamic finance market grows and matures, international financial centres such as the British Virgin Islands are being used to facilitate the structuring of Islamic finance products and transactions such as sukuk and musharakah and the incorporation of investment funds and corporate structures. BVI companies are also used by Islamic high-net-worth individuals and families as holding companies for assets in developed markets.

Changes to BVI anti-money laundering regime
British Virgin Islands | 07 January 2016

The British Virgin Islands has announced amendments to its anti-money laundering regime in order to ensure continued compliance with the developing international standards on transparency and anti-money laundering regimes. The changes have the most impact on the eligible introducer regime – in particular, where a BVI-registered agent relies on third-party introducers to obtain and verify the identity of the client.

BVI Business Companies (Amendment) Act 2015: a summary
British Virgin Islands | 10 December 2015

The government recently gazetted the BVI Business Companies (Amendment) Act 2015. If passed into law as expected, it will be the 13th amendment to the BVI Business Companies Act. A number of the proposed changes will dovetail with the recently announced new premium service function at the Companies Registry to facilitate time-sensitive, complex and special transactions, such as continuations to facilitate more difficult commercial transactions.

Voluntary liquidation: an almost irreversible procedure
British Virgin Islands | 26 November 2015

Can a company that has been voluntarily wound up be restored to good standing on an application by a former shareholder, liquidator or director who has a change of heart regarding the company's liquidation? A recent High Court decision confirmed the BVI position that the onus is on the claimant seeking restoration to prove that the circumstances warrant it and to address the potential prejudice that could befall third parties.

BVI insolvency law in 60 seconds
British Virgin Islands | 05 November 2015

Insolvency law in the British Virgin Islands is almost entirely codified in the Insolvency Act and supplemented by the Insolvency Rule. The Insolvency Act was modelled largely on the UK Insolvency Act, but with a number of key differences. This update summarises its features, including provisions for insolvency, liquidation, priority, set-off, challengeable transactions, misfeasance and receiverships.

British Virgin Islands insurance legislation overhauled
British Virgin Islands | 29 October 2015

The British Virgin Islands has gazetted the Virgin Islands Insurance (Amendment) Act 2015 and the Insurance Amendment Regulations 2015. These acts have been introduced to modernise the provision of insurance business in and from the British Virgin Islands. Some significant changes will open up new opportunities and improve functionality for both captives and insurers.

Shareholder disputes: when is just and equitable liquidation appropriate?
British Virgin Islands | 03 September 2015

Unfair prejudice claims have been common since the introduction of bespoke provisions in the Business Companies Act and have all but replaced old-fashioned just and equitable winding-up petitions. However, in Wang Zhongyong v Union Zone Management Limited the Court of Appeal for the first time considered a standalone just and equitable petition brought under Section 162 of the Insolvency Act.

Shipping & Transport

Government raises charter cruising permit fees
British Virgin Islands | 16 August 2017

The government recently enacted two measures regarding the cruising permit fees that each charter boat must pay while carrying paying passengers in the British Virgin Islands. Under the Cruising Permit (Amendment) Act, boats will now be classified as either home-based or foreign-based charter boats, with set fees for each classification. The Statutory Rates, Fees and Charges (Amendment of Schedule) Order 2017 confirms these fees for internal government purposes.

White Collar Crime

AHAB v Saad – importance of a particularised and principled tracing claim
Cayman Islands | 23 July 2018

In Ahmad Hamad Algosaibi & Brothers Company (AHAB) v Saad, the Grand Court found that AHAB's claims, which attempted to trace its funds into the hands of defendant SIFCO5, were "unparticularised and unprincipled". Further, AHAB was unsuccessful in establishing that funds representing traceable proceeds from the Money Exchange reached SIFCO5 or in articulating any discernible cause of action against SIFCO5 in respect of such funds.

Grand Court dismisses multibillion-dollar fraud claims in one of largest Ponzi schemes in history
Cayman Islands | 09 July 2018

In a landmark ruling, the Grand Court emphatically dismissed a multibillion-dollar claim in a case involving allegations of fraud arising from one of the largest corporate collapses of the financial crisis. The case has showcased the court's ability to manage high-profile large-scale litigation, demonstrating especially the quality of the Cayman Islands judiciary and the court's ability to use cutting-edge technology, as well as the resources and flexibility to manage a year-long, multi-jurisdictional trial.

Anti-money Laundering Regulations for unregulated investment and insurance entities to take effect
Cayman Islands | 18 December 2017

Under new anti-money laundering legislation, the list of activities classed as relevant financial businesses has been expanded. Unregulated investment funds and some insurance entities have now been given a grace period until May 31 2018 to establish anti-money laundering compliance programmes. This is a welcome move, particularly for unregulated investment funds which were not bound by the preceding regulations and therefore may not have policies and procedures in place.

New Anti-money Laundering Regulations come into force
Cayman Islands | 20 November 2017

The government recently adopted updated Anti-money Laundering Regulations. The regulations demonstrate the Cayman Islands' ongoing commitment to comply with the highest international standards on combating money laundering and terrorist financing and aim to ensure consistency with the Financial Action Task Force 2012 recommendations. The move is part of an overall update of the territory's anti-money laundering regime.

Amended anti-money laundering and terrorist financing code gazetted
British Virgin Islands | 01 May 2017

Schedule 2 of the Anti-money Laundering and Terrorist Financing Code of Practice 2008 sets out a list of jurisdictions with laws and regulations similar to those of the British Virgin Islands. The principal advantage of relying on Schedule 2 is that business coming from recognised jurisdictions will generally attract the application of reduced client due diligence measures.

Implementing EU anti-money laundering legislation in Cyprus
Cyprus | 20 March 2017

Cyprus implements EU anti-money laundering directives through the Prevention and Suppression of Money Laundering Laws 2007 to 2013. The Advisory Authority for Combating Money Laundering is working with the local industry to transpose the EU Fourth Anti-money Laundering Directive and (in due course) the EU Fifth Anti-money Laundering Directive through amendments to domestic legislation.