Exploring Offshore Litigation

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Aug 2026

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Exploring Offshore Litigation is a captivating podcast series containing audio of written blog content that dives deep into the intriguing world of offshore litigation, including the BVI and Cayman. Each episode sails through complex legal waters, bringing you up-to-date analysis of recent high-stakes cases and expert commentary from the leading minds in this specialised field. Our episodes demystify legal jargon and break down complex cases to make them accessible to all. Harneys, an international law firm with entrepreneurial thinking, brings each episode to you.

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August 25, 20268 min

Estoppel explained: What the UK Supreme Court's latest decisions mean for offshore litigation What is estoppel? The narrow limits of issue estoppel Practical guidance for offshore litigators

The UK Supreme Court has recently delivered judgment in Skatteforvaltningen v MCML Ltd which has helped focus the parameters of estoppel, together with previous landmark decisions, such as Tinkler v HMRC estoppel by convention (Harneys' article on Tinkler can be viewed here), and Guest v Guest, regarding proprietary estoppel (Harneys' article on Guest can be viewed here). In this article, we analyse the key decisions and consider what they mean for practitioners in the BVI and other offshore jurisdictions. Estoppel is a term used to refer to a collection of legal doctrines, all of which are underpinned by the concepts of equity, unconscionability and the prevention of injustice. The most common estoppels are as follows: Issue estoppel prevents a party from re-litigating an issue of fact or law that has been finally determined in earlier proceedings between the same parties. It promotes finality and efficiency. Estoppel by convention prevents a party from resiling from a common assumption of fact or law on which both parties have conducted their dealings, where it would be unconscionable to permit departure from that assumption. Proprietary estoppel arises where a person has been given an assurance regarding rights in property, has relied on that assurance to their detriment, and it would be unconscionable not to give effect to the expectation created. Estoppel by representation operates to protect against a departure from an assertion of fact or law intending it to be relied on and which was relied on by the other party to their detriment. Whilst issue estoppel can have a 'very powerful effect', the Supreme Court has recently confirmed that it is a narrow doctrine, which has a different role than the abuse of process doctrine (see the rule in Henderson v Henderson). Any unfairness created by a party failing to put some point in issue, when they could have, will be addressed by the Henderson rule. In Skatteforvaltningen, the Supreme Court considered whether SKAT, the Danish Customs and Tax Administration, could bring a fraud claim after an earlier claim for negligent misrepresentation had been brought, and dismissed, against the same financial brokerage business. The Court of Appeal treated the earlier decision as creating an issue estoppel; whereas the Supreme Court disagreed and unanimously allowed the appeal. The case gave the Supreme Court the opportunity to consider issue estoppel in more detail and the court concluded that when carrying out an estoppel analysis, the question to ask is whether the issue was necessary and fundamental to the prior decision; with the pleadings being a critical consideration during this analysis. The court found that the factual and legal bases of the fraud claim were not traversable to the negligent misrepresentation claim. As a result of the court's findings, it was unnecessary for the court to look at ground 1 of the appeal which argued that an issue estoppel could arise from a prior court's formulation of a legal principle or articulation of legal reasoning. From the perspective of a claimant, the case confirms that they can bring a new claim if it arises out of new or different legal or factual circumstances. Defendants will have to grapple with the fact that issue estoppel will only intervene in narrow circumstances where the issue decided in the prior proceedings were necessary and fundamental to the decision; and 'whether an issue arose on the parties' pleadings in the prior civil proceedings is critical in deciding whether its determination was necessary and fundamental'. The message to commercial litigators from this case is clear: ensure your pleadings are precise and properly framed from the outset of the litigation. For offshore practitioners, particularly in fraud and asset-recovery litigation involving overlapping parties or successive causes of action, Skatteforvaltningen is a warning against treating a previous dismissal as a general answer to a subsequent case pleaded diff...

August 21, 20266 min

Oiling the wheels of commerce: a reminder of the requirements for sanctioning a scheme of arrangement in the Cayman Islands Background Key legal principles Further judicial observations Conclusion

The recent decision of the Grand Court of the Cayman Islands in In the Matter of Logan Group Company Limited provides a useful reminder of the principles governing the sanctioning of schemes of arrangement under section 86 of the Cayman Islands' Companies Act. The Court's clear articulation of the hurdles a company must overcome, together with clarification of the Court's approach to exercising its discretion at a sanction hearing, will serve as useful practical guidance to insolvency practitioners advising distressed companies in relation to a proposed scheme, particularly those with complex cross-border debt structures. Logan Group Company Limited, a company incorporated in the Cayman Islands, sought the court's sanction of a proposed scheme of arrangement in parallel with a related inter-conditional scheme in Hong Kong. A convening hearing took place in May 2026 and the sanction hearing took place on 4 August before Justice Doyle. Drawing on well-established jurisprudence in relation to the requirements of a successful scheme of arrangement, Justice Doyle sanctioned the scheme, applying an "8 hurdle" framework as set out below. In his judgment, Justice Doyle set out the principles the court will apply in determining whether to sanction a scheme, citing Cayman Islands, Hong Kong and English authority. He confirmed that the following eight main hurdles must be cleared in order to satisfy the court that it is appropriate to sanction a scheme: 1. Compliance with the convening order - has the company complied with the terms of the convening order? 2. Statutory majority - has the requisite 75 per cent statutory majority been achieved? 3. Fair and adequate representation - was the class of scheme creditors fairly and adequately represented by those who attended the scheme meeting? 4. No coercion of the minority - was the statutory majority acting bona fide and not coercing the minority in order to promote interests adverse to those of the class whom they purported to represent? 5. Permissible purpose and limited rationality - is the scheme for a permissible purpose that is fair and one which an intelligent and honest person, being a member of the class concerned and acting in respect of their interest, might reasonably approve (the "limited rationality test")? 6. No blot or defect - is there any blot or defect in the scheme which would warrant the court refusing to sanction it? 7. International effectiveness - in the case of a scheme with an international element, would the court be acting in vain if it sanctioned the scheme? This involves consideration of whether the scheme will be recognised and given effect in other jurisdictions. 8. Residual discretion - as a matter of residual discretion, is there any reason the court should refuse to sanction the scheme? The following practical considerations also emerge from the judgment: 1. Deference to commercial judgment - The Court reiterated that it does not impose its own view of the commercial merits of a proposed scheme because members or creditors are generally much better judges of their own interests than the court (reiterating Lord Justice Snowdon's comments in Re AGPS Bondco plc and Justice Smellie's comments in Re SPhinX Group of Companies). The Court emphasised that its role at the sanction stage is not to pass its own subjective judgment on the merits of a scheme but to ensure the jurisdictional requirements are met and that no unfairness taints the process. 2. Sufficiency of explanatory material - The Court remarked on the need for sufficient explanatory statements, the objective of which is to provide sophisticated creditors with sufficient information to assess the scheme and identify any further information they consider necessary to decide whether or not to support it. 3. International effectiveness - on the international dimension, Justice Doyle drew on the remarks of Mr Justice Harris in the Hong Kong courts namely that: "the guiding principle is that the Court sho...

August 14, 20264 min

Directors' duties: causation and loss in insolvent trading

The court upheld the first instance judge's key findings against two former directors but narrowed the company's recovery. It separated the client money shortfall caused by the wrongdoing from losses generated by ordinary trading. The decision also gives a practical reading of the landmark UK Supreme Court decision in BTI 2014 v Sequana regarding "creditor duty" and claims about insolvent or loss-making companies. In 2017, Next Generation bought 58 per cent of AFL Insurance Brokers. Before the sale, the Finches were directors of AFL. They had used client money to fund business expenses and concealed trading losses through false accounting. The High Court found fraudulent misrepresentation, dishonest breach of warranty, breaches of duties owed to AFL and unlawful means conspiracy. Those findings were not reopened on this appeal, which was limited to one question: whether AFL's trading losses were legally caused by the Finches' breaches and unlawful acts. The Court of Appeal allowed the appeal in part. It focused on the scope of the duties that had been breached and on the distinction between a factual opportunity to incur a loss and a legal cause of loss. The fraud explained why AFL's financial position was hidden. It did not, without more, explain why the business later made losses. AFL's trading performance remained a commercial question, not a loss automatically attributable to the fraud. Losses arising from AFL's ordinary operations, including the post-acquisition losses, were not shown to be caused by the Finches' misconduct. That conclusion was reinforced by the fact that when new management took over, further capital was injected and AFL at times traded profitably before the business was wound down. The fraud may have given AFL an opportunity to keep trading, but an opportunity was not the same as a cause. The Court of Appeal held that the law was clear that it does not generally impose upon directors a duty to ensure that their company does not trade while insolvent or at a loss, a conclusion also reached in Sequana. Sequana concerned when directors must take account of creditors' interests as a company approaches insolvency. It confirmed that this is a modification of the directors' duty to the company, rather than a separate duty owed directly to creditors. The modified duty is engaged when the company is insolvent, or when insolvency is imminent (with creditor interests being paramount when an insolvent liquidation or insolvent administration is inevitable). A remote risk of future insolvency is not enough. In this case, the court found that the Finches did not breach their duty to give appropriate considerations to the interests of AFL's creditors in the sense discussed in Sequana; indeed, the essence of the fraud was that the Finches ensured AFL's trade creditors were paid albeit using money belonging to its clients. This case serves as a useful reminder that directors who misuse entrusted money remain liable to restore it, but they are not insurers of the company's commercial performance. The law does not impose on directors a duty to ensure that their company does not trade while insolvent or at a loss. In a breach-of-duty claim, the loss must flow directly from the specific breach. It is not enough to show that the business would have ceased but for the wrongdoing and trading losses arising from the company's ordinary operations are not automatically attributable to misconduct. While Harneys does not practise the law of England and Wales, the decision will be of general interest to practitioners in the BVI and Cayman Islands, where liquidators bringing claims against directors will need to identify the specific duty that was breached and demonstrate that the loss claimed was a direct consequence of that breach, rather than simply showing that the company continued to trade while insolvency was a possibility.

August 5, 20268 min

Shares for a euro – English Court upholds the integrity of BVI corporate structures against asset stripping attempts Background The decision Practical takeaways

In a recent decision of the English Commercial court, GLAS SAS (London Branch), as trustee of €250 million in tradeable bonds, succeeded in claims against a BVI-incorporated company and related parties for the misappropriation of shares worth approximately €85 million. The judgment is a comprehensive illustration of how English courts deploy section 423 of the Insolvency Act 1986 extraterritorially, and of the tort of unlawful means conspiracy, where assets are stripped through offshore vehicles. GLAS was the trustee of English law bonds with a principal value of €250 million issued by European Topsoho (ETS), a Luxembourg company and indirect subsidiary of the Shandong Ruyi Group, a major Chinese industrial conglomerate. ETS owned approximately 53% of the shares in SMCP, a French fashion company. Some shares were pledged to GLAS as security; the remainder (the Unpledged Shares) had a value of approximately €85 million in October 2021. GLAS's case was that Ms Qiu, a senior Ruyi Group executive and A Manager of ETS, procured the transfer of the Unpledged Shares to Dynamic Treasure Group Limited, a BVI company she personally controlled, under a purported share sale agreement for €1. Dynamic then converted the shares to bearer form and transferred them to its account with JP Morgan in Singapore. ETS was subsequently declared bankrupt in Luxembourg. Its court-appointed bankruptcy administrator investigated the transaction independently and reached similar conclusions to GLAS: the transfer was not a genuine commercial arrangement. The defendants were debarred from defending the claims by reason of persistent non-compliance with court orders, including failures of disclosure across proceedings in England and Singapore. Although debarred, GLAS accepted it had to prove its case on the balance of probabilities. Governing law. The court held that English law governed both the section 423 claim (as the law of the forum) and the economic torts (under Article 4 of Rome II). The damage occurred in England because GLAS was entitled to call for payment in England under the Trust Deed, and the bonds and trust deed were governed by English law. The court dismissed Xinbo's contention that PRC law applied. The 2018 Agreement. The court concluded that a purported 2018 pledge agreement (under which Xinbo claimed security over all SMCP Shares) was not genuine and had been created after the event and backdated. Among the numerous difficulties: no contemporaneous documents existed; the B Managers had no knowledge of it; ETS's own managers certified in 2021 that no security existed over the shares other than the bond security; and the arrangement was commercially implausible given the shares were worth €960 million at the purported date versus Shandong Ruyi's supposed debt of €177 million. The SSA and the Disposal. The purported share sale agreement was held to be invalid. There was evidence that Grandall, Dynamic's corporate director, did not sign the SSA. The transfer lacked the required consent of Sino Power under ETS's Articles, no B Manager co-signed as required, and the €1 consideration was plainly a transaction at a substantial undervalue. The Beihai Award. A Chinese arbitration award relied upon by the defendants was dismissed as collusive. The arbitral process took place between parties under common control who agreed all substantial points without argument. Xinbo's attempts to enforce it had been dismissed in Singapore and it had abandoned English recognition proceedings. Section 423 relief. The court granted relief under section 423, holding that the Disposal was a transaction at an undervalue entered into for the purpose of putting assets beyond the reach of GLAS and the bondholders. The court confirmed that section 423 contains no territorial limit and exercised its discretion given the substantial connection with England: the bonds, trust deed, and enforcement mechanisms were all English law instruments. Unlawful means conspiracy. The c...

August 3, 20268 min

BTC's on-chain fingerprint: implications on recovery strategy Background Tracing and service on the blockchain Bitcoin: a "discrete and identifiable unit" Judgment despite silence Comment

In Smithers and another v Persons Unknown Category 1 and others, the English Commercial Court granted summary judgment in favour of two victims of a crypto asset fraud, ordering the return of Bitcoin and awarding compensatory damages for fungible tokens. The decision, handed down by Mr Justice Bright, offers an insight into the practical realities of crypto asset recovery. The two claimants, Ms Nancy Smithers, a Canadian national, and Ms Angelina Usanova, a Maltese national, were induced to invest the equivalent of approximately £10.5 million with what they believed to be a genuine cryptoasset trading platform operating under the name "Raliplen" and later "Servelius". In May 2025, Ms Smithers was contacted by a man who claimed to be an expert trader and persuaded her to open an account and transfer both fiat currency and cryptoassets over a period of months to Servelius for trading. Ms Smithers introduced Ms Usanova to the fraudster, and Ms Usanova likewise transferred cryptoassets to Servelius. By October 2025, the fraudsters, known only by aliases, had removed all the cryptoassets from the accounts and disappeared. Specialist investigators were able to trace the stolen assets to exchange deposit addresses and final destination private addresses. In some cases, the individuals behind those addresses could be identified; in most, they could not. The claimants brought proceedings against "persons unknown" and effected service by transferring either a non-fungible token containing a link to the proceedings, or an OP_RETURN message, directly to the relevant receiving addresses. Our previous article Jurisdictional issues in crypto currency disputes (Part 2): service on "persons unknown" and service by alternative means identified authorities, including D'Aloia and Osborne, which recognised NFT airdrop as a legitimate mode of service. Smithers confirms that this technique is now firmly embedded in mainstream Commercial Court practice and not merely a novel workaround. The court accepted expert evidence that Bitcoin transaction outputs do not commingle into a single homogenous balance. Each unspent output remains discrete and uniquely identifiable until it is spent. In this sense Bitcoin differs from many other types of commonly traded cryptocurrencies which are fungible. The fact that the Bitcoin that was misappropriated by way of the fraud could be identified as the very same property in the receiving wallets meant that the victims were able to follow their proprietary interest into that particular property and it was ultimately ordered to be returned in specie. By contrast, the court found that USD Coin and Ethereum, being fungible, had lost their identity upon transfer to and receipt by the receiving addresses, such that it was not possible to identify precisely the same assets as were taken from the claimants. The claimants therefore elected a compensatory remedy in fiat for those tokens, rather than pursuing a proprietary restitutionary claim. This distinction is instructional for practitioners structuring proprietary injunctions and tracing claims, and echoes the tracing and constructive trust principles discussed in the first article in Harneys' cryptocurrency publication series: Jurisdictional issues in crypto currency disputes (Part 1): service out of the jurisdiction. With no defendants appearing, the court proceeded on the R v Jones line of authority and granted summary judgment for deceit against the receiving defendants, together with indemnity costs of £230,000. The underlying asset-tracing exercise in Smithers, which identified exchange deposit addresses and the individuals who ultimately control them, is a good example of the investigative groundwork that will often need to be undertaken before pursuing legal action, such as Norwich Pharmacal and Bankers Trust applications against exchanges in the Cayman Islands and BVI, as explained in our article: Identifying wrongdoers in the crypto space: the Norwich Pharmaca...

August 3, 202611 min

An unwritten rule: The Guernsey Court of Appeal on informal trust declarations and the presumption of equality

A handwritten note, a single sentence long, with no witness, no signature block, and no mention of how property should be divided. Can such a document constitute a valid declaration of trust? The Guernsey Court of Appeal has confirmed that it can. In Ashdown v Fraser, the Court of Appeal dismissed an appeal against a Royal Court decision upholding the validity of a handwritten document by which a settlor declared the shares in a family company to be held for two trusts, without specifying the proportions in which each trust was to benefit. The decision offers useful clarification on the doctrine of certainty of subject matter, as well as guidance on how informal trust instruments ought to be construed, and how the venerable equitable maxim that equality is equity continues to do meaningful work in modern trust litigation. Victor Ashdown (the Settlor) was a successful businessman who held the entire issued share capital of Sylvan Holdings Limited, comprising 100 shares. He had two children, Mark and Jane. During his lifetime he established a number of professionally drafted family trusts, including the Victor Ashdown Trust for Mark (established in 1989) and the Victor Ashdown Guernsey Settlement for Jane (established in March 1994). On 9 August 1994, the Settlor wrote the following by hand: "TO WHOM IT MAY CONCERN THE SHARES IN SYLVAN HOLDINGS LTD ARE NOW TO BE HELD IN MARKS AND JANES TRUST [sic]" (the 1994 Document). A contemporaneous trustees' meeting minute recorded the settlement of shares into trust on the same date, though the minute did not itself identify which trust or trusts were intended nor any proportionate division between them. The Settlor never transferred legal title to the shares. In 2015, he executed a stock transfer form transferring them into Mark's name. The 1994 Document was not discovered until April 2022, shortly before the Settlor's death. What followed was a dispute between Mark (executor and personal beneficiary of Mark's Trust) and Jane (supported by the trustees of Jane's Trust) as to the effect, if any, of the 1994 Document. Mark (the Appellant) argued that the document was not a valid declaration of trust; at best it was an aide-mémoire or statement of future intention. In the alternative, he argued that it was void for uncertainty of subject matter: the document said nothing about how the shares were to be divided between the two trusts, and that silence was fatal. Jane (the First Respondent) resisted, contending that the 1994 Document constituted a valid declaration of trust over all 100 Sylvan shares in favour of both trusts, in equal proportions. At first instance in the Royal Court, the Deputy Bailiff at first instance upheld the declaration, finding that a "reasonable person would infer" equal division. The Royal Court granted leave to appeal on three grounds: the methodology used (the "reasonable person" formulation); certainty of subject matter; and the construction of the 1994 Document as a present declaration for two trusts in equal shares. The Court of Appeal dismissed the appeal on all three grounds. The Court rejected the argument that the 1994 Document was merely a note to self or a statement of possible future intention. The critical words, "ARE NOW TO BE HELD", were found to be strongly indicative of present intention, not aspiration. Relying on the Privy Council's decision in Choithram (T) International SA v Pagarini, the Court emphasised that informality does not negate legal effect where the intention to declare a trust is sufficiently clear: equity "will not strive officiously to defeat a gift." The contemporaneous trustees' minute further reinforced the conclusion that the Settlor intended a present settlement. The Court also dealt squarely with the argument that the Settlor's subsequent conduct, including his failure to act on the document and his later transfer of the shares to Mark in 2015, undermined the declaration. It held that this was of "questionable relevance, an...

August 3, 20264 min

Soprim Construction SARL v The Republic of Djibouti & others [2026] EWHC 1850 (Comm) - how a state's grip on a container terminal ended in a London charging order

The English High Court has held that a Djiboutian container terminal operator (DCT) held over US$41 million in shipping profits on trust for the Republic of Djibouti (the Republic) in bank accounts in London[FG1.1]. This finding enabled a contractor (Soprim) with unsatisfied arbitral awards against the Republic to obtain a charging order in respect of the entire sum, despite the fact that Soprim had no judgment against DCT directly. Djibouti occupies a strategic position at the entrance to the Red Sea and the Gulf of Aden, astride one of the world's busiest shipping lanes. The Doraleh Container Terminal was constructed to capture revenue from that traffic pursuant to a 2006 concession agreement governed by English law. Soprim, a construction sub-contractor closely involved in the terminal's construction, fell into dispute with the Djiboutian government after its general manager declined to support the president's bid for a third term. An arbitral tribunal subsequently found in Soprim's favour, that the Republic had waged a campaign of "persecution" against Soprim, awarding it US$56 million for the destruction of its business in May 2018, together with a further c.US$28 million in interest and costs in July 2018. None of those awards were satisfied. The Republic had moved against the terminal itself, seizing it, expelling staff, and transferring its assets by decree. It subsequently procured the appointment, by Djiboutian courts, of an administrator and then a liquidator, both closely aligned with the government, in each instance without notice to the other shareholder. Meanwhile, the terminal's profits of c.US$41.6 million held across six accounts at Standard Chartered Bank in London remained frozen pursuant to a 2017 worldwide freezing order obtained by Soprim after it learned that the funds might be diverted to the Republic. Soprim subsequently sought a charging order, contending that DCT secretly held those accounts on trust for the Republic. The central issue was whether the administrator or liquidator had agreed, on the company's behalf, to hold the funds on trust for the Republic. Soprim submitted that such an agreement should be inferred from the Republic's control; the objecting parties maintained that no evidence of any such arrangement existed. Lacking direct proof, Soprim relied on circumstantial evidence and invited the court to infer an agreement, adopting the approach to drawing inferences endorsed in the English case of Invest Bank v El-Husseini . English law permits a trust to be inferred from conduct alone: as the English Court of Appeal held in Paul v Constance, a trust may arise from words or conduct even where the parties are unfamiliar with the underlying legal concept, and need not be formally declared. The judge found the inference compelling, citing the president's demonstrated total control over the Djiboutian state, the administrator's pattern of favouring the Republic over the company they were appointed to serve (echoing the reasoning in Kazakhstan Kagazy v Zhunus that true ownership may be inferred where a person exercises control over assets ostensibly owned by another) and the fact that the accounts had consistently been used to channel profits toward the Republic. No witness for the Republic gave evidence to rebut the arrangement, notwithstanding the opportunity to do so, and the judge treated that silence as significant. He rejected the argument, drawn from Williams v Central Bank of Nigeria, that merely acting on presidential instruction could not amount to an intention to create a trust, reasoning instead that the president's wish for the arrangement was itself evidence of the requisite intention. The trust was accordingly established. The court granted Soprim, among other orders, a final charging order over the entire London accounts. Harneys does not practise the law of England and Wales, but the decision offers commonwealth practitioners a useful illustration of how the English courts a...

July 28, 20266 min

It's not an issue, or is it? BVI Court of Appeal clarifies what amounts to assent to becoming a holder of onerous shares Background What does section 49 require? Why the email exchange was sufficient to show assent Written assent must exist at the time of issue ASOR's conduct provided a further basis for refusing relief Commercial implications

Harneys has successfully acted for the joint liquidators of Phoenix Commodities Pvt Ltd (Phoenix), Ryan Jarvis of Deloitte and Rachelle Frisby at Interpath (formerly Deloitte), in an important BVI Court of Appeal decision clarifying when a person has agreed in writing to become a shareholder. In ICM SPC v Jarvis, the Court held that section 49 of the Business Companies Act 2004 does not require a formal, signed subscription agreement for a share issue to be valid. A contemporaneous exchange of emails, read together with their attachments, may be enough. The decision is commercially significant for funds, companies, boards and insolvency practitioners: informal correspondence exchanged while a share issue is being progressed can have binding consequences, even where formal subscription documents have not yet been signed. The appeal arose out of the liquidation of Phoenix. We covered the first instance decision in a previous blog post, and a related stay application in another. ICM SPC, acting on behalf of Ancile Special Opportunity and Recovery Fund Segregated Portfolio (ASOR), had been entered on Phoenix's register of members as holder of 440,935 shares, valued at around US$40 million. When Phoenix was put into liquidation the following year, the joint liquidators settled a list of members that included ASOR. ASOR objected, arguing that the share issue was void under section 49 because it had never agreed in writing to become a shareholder, and applied under section 193(3) of the Insolvency Act 2003 to be removed from the list. If ASOR remained on the list, it could be liable to contribute to the company's assets in the liquidation. The judge dismissed ASOR's application at first instance. ASOR appealed to the Court of Appeal, which ultimately upheld the first instance decision. Section 49 provides that a share issue which increases or imposes a liability on a person is void unless that person "agrees in writing to becoming the holder of the share". ASOR argued this provision required a single, formal, bilateral subscription agreement setting out the number of shares, the consideration and the effective date. The Court disagreed with this interpretation of the provision. Instead, it held that section 49 does not require an executed agreement or even a signature: all it requires is a written record, whether in one document or several contemporaneous documents read together, sufficient to identify the person becoming the holder of the share(s), the company, the shareholding in question, and the fact of assent to it. Applying that test, the Court found that an exchange of emails between Phoenix and ASOR's representative, together with an attachment setting out the proposed shareholding, was sufficient to show ASOR's assent to becoming the holder of the shares. It did not matter that one email, in which ASOR's representative confirmed "good receipt of the revised Shareholder structure and adequacy of the same", was not itself "a model of legal drafting", and "did not use the words 'subscribe', 'allot', 'issue', or 'agree to be bound"'. The surrounding correspondence showed that (i) the shares were about to be issued, (ii) the proposed shareholding had been circulated, and (iii) ASOR's representative had confirmed that the revised structure was correct. Read together, the emails and attachment were sufficient to establish that ASOR had agreed in writing to become the holder of the shares. The Court of Appeal also confirmed – dismissing the respondent liquidators' counter-notice on this point – that the written assent required by section 49 must exist before or at the time the shares are issued. Documents created afterwards cannot cure a defective issue, but they remain admissible as evidence corroborating that assent was given earlier. A certificate ASOR later signed, describing itself as holder of the shares, could not retrospectively validate the issue – but it did support the conclusion that ASOR had agreed to the shareholdin...

July 21, 20269 min

Conditions for reappointing Cayman ROs: the Ruipeng decision

On 31 March, the Grand Court of the Cayman Islands delivered its judgment in the Matter of New Ruipeng Pet Group Inc, making orders concerning the appointment of restructuring officers (ROs) over the company. The judgment holds significance as it is the first to address the jurisdictional threshold that must be satisfied to make such an RO continuation order. The requirements are straightforward: the ROs must demonstrate that the conditions for a de novo appointment continue to exist. However, the effect of the judgment has wider practical implications for ROs, creditors and companies alike. There are two statutory preconditions for the appointment of ROs set out under section 91B of the Cayman Companies Act (2025 Revision): that the company is or is likely to become unable to pay its debts within the meaning of section 93; and the company intends to present a compromise or arrangement to its creditors either pursuant to the Act, the foreign law of any country, or by way of a consensual restructuring. In 2022, Justice Ian Kawaley issued the first judgment under the RO regime, In the Matter of Oriente Group Ltd, holding that the jurisdiction to appoint ROs is a broad one to be exercised where: (a) the statutory preconditions are met; and (b) the proposal has or will potentially attract the support of a majority of creditors as a more favourable commercial alternative to a winding up of the company. The following year, Justice David Doyle dismissed a petition for the appointment of ROs in In the Matter of Aubit International and set out a detailed list of 25 matters the court should consider when determining whether to make an appointment order building on the principles detailed in Re Oriente and earlier restructuring cases that predated the RO regime. Five of those points addressing the threshold are summarised as follows. First, Doyle J observed that the jurisdiction may only be exercised where the court is satisfied the statutory precondition of an intention to present a restructuring proposal to creditors is met by credible evidence of a rational proposal with reasonable prospects of success. Second, he said the court will need to be satisfied that management genuinely require and deserve a "breathing space" to finalise a restructuring plan with creditors that has a reasonable chance of success and would be in the best interests of creditors and enable the company to continue as a going concern. The judge said the court needs to guard against placing any emphasis on any unrealistic "wishful thinking" by management. Third, Doyle J said it is important that petitioners seeking the appointment of ROs should have all their ducks in a row before filing the petition and they should not assume that if their evidence is inadequate, the court will grant them an adjournment. Finally, the judge observed that even if the company and all creditors agree to the appointment of ROs, the court must, nevertheless, of course, be satisfied that it has jurisdiction to make the order and that making the order would, in its discretion, be a proper exercise of such jurisdiction. Companies and creditors cannot confer jurisdiction on the court to appoint ROs simply by consent. As noted, the effect of the judgment in Ruipeng is that now the ROs must show that their continued appointment is justified and must do so by demonstrating afresh that the criteria for making an appointment order are satisfied. Justice Jalil Asif held that if the criteria are not met: "then it seems to me that the court is under a duty to terminate the appointment at that stage because the statutory purposes set out in section 91B and the statutory criteria for the appointment are no longer satisfied." Onerous obligations? As demonstrated in Re Aubit, the threshold for the appointment of ROs in the first instance is high and must be properly evidenced. By imposing these requirements on the ROs at each case management conference, they must come to court prepared. To that end...

July 13, 20269 min

The BVI Court System: A Q&A Guide What is the structure of the courts in the BVI? Are any pre-action steps required before issuing proceedings? How are claims initiated? What is the typical timeframe from filing to trial? Can court filings be submitted electronically? Is there a right of appeal? What are the timelines and procedures for appeals? Is interim relief available?

The BVI has established a reputation for maintaining an independent and highly respected court system for the resolution of high-value commercial disputes. The courts benefit from adherence to common law principles and the appointment of experienced judges, whose expertise ensures that proceedings are conducted in accordance with internationally recognised standards of fairness and legal rigour. This, combined with a well-developed body of commercial case law, guided by English and Commonwealth authority, has made the BVI a trusted jurisdiction for resolving complex cross-border disputes. The BVI court system has established itself as a global hub for commercial and insolvency-related matters and trust litigation. With over 355,000 active business companies registered in the jurisdiction, the sheer volume of BVI-incorporated entities used in international corporate and fund structures means cross-border commercial disputes and insolvencies frequently have a BVI nexus. The BVI Insolvency Act, Revised Edition 2020 provides a robust framework for recognising foreign proceedings and assisting foreign representatives from prescribed jurisdictions. The BVI courts form part of the Eastern Caribbean Supreme Court (ECSC) system. The civil court hierarchy comprises: (a) the High Court (Civil Division); (b) the High Court (Commercial Division); (c) the ECSC Court of Appeal; and (d) the Judicial Committee of the Privy Council in London, which sits as the final appellate tribunal. Procedure is governed by the Eastern Caribbean Supreme Court Civil Procedure Rules (Revised Edition) 2023 (EC CPR) and associated practice directions, which are based on, but not identical to, the England & Wales Civil Procedure Rules. Whereas the BVI Court does not have the extensive system of Pre-Action Protocols found in England & Wales, Practice Direction 8 (No 2 of 2023) introduced protocols requiring parties to share relevant information prior to commencing a claim. The objective is to facilitate early exchange of details, promote settlement, and ensure any subsequent litigation is managed efficiently. A claimant is expected to write to the defendant outlining the claim, and the defendant must reply within an agreed period either accepting or contesting liability. Failure to comply may attract adverse costs consequences, save where urgency applies or a limitation period is about to expire. The court nonetheless expects parties to act reasonably and promptly in exchanging documents and information and in attempting to avoid litigation. The method depends on the nature of the dispute: Part 8 Claims. Part 8 of the EC CPR governs the commencement of proceedings in the BVI and applies to all claims as the default procedure — the claimant files a Part 8 Claim Form together with a Statement of Claim, setting out a short description of the claim, the remedy sought, and an address for service. There is no monetary threshold for commencing a Part 8 claim as such, although claims proceeding in the BVI Commercial Division must have a minimum value of US$500,000. Once the claim form is served the defendant has 14 days to file an acknowledgment of service and 28 days to file a defence; the case then progresses through a case management conference, disclosure, witness statements and expert evidence (typically spanning six to eighteen months), with complex commercial trials usually listed within 18 to 24 months of filing. Fixed Date Claims. A fixed date claim form is designed so that a hearing date is allocated at the point of issue. If the claim is undefended or the court considers it suitable for summary determination, this initial hearing may be treated as the trial itself. The claim is supported by affidavit evidence rather than pleadings. Examples of matters requiring a fixed date claim form include: recognition and enforcement of foreign arbitral awards; restoration of a company; rectification of a register of members; Beddoe and Public Trustee v Cooper applicatio...