In a recent Privy Council decision IGCF SPV 21 Limited v Al Jomiah Power Limited and another, the Board ruled on when a party is held to have submitted to the jurisdiction of a foreign Court as a matter of Cayman law.
The parties' positions
It was common ground between the parties that an applicant will forfeit its right to an injunction if it submits to the Court of a foreign jurisdiction.
The Appellant was pursuing proceedings against the Respondent in Pakistan. The Respondent had sought to appear in Pakistan in order to contest jurisdiction.
The Respondents applied for an anti-suit injunction in the Cayman Courts, seeking to restrain the Appellant from pursuing the proceedings in Pakistan.
The Appellant's argument was that the Respondent had submitted to the jurisdiction of Pakistan.
The Rule in Geoprosco
The Appellant relied on what they called the "Rule in Geoprosco" - a 1975 English Court of Appeal case that held that appearing before a foreign Court (Pakistan) simply to contest jurisdiction counted as submission. Since Geoprosco was decided, it had in fact been reversed in England and Wales by a 1982 statute.
Without an equivalent Cayman statute, the question arose: what was the Cayman position?
The Board concluded at [52] that Geoprosco "should form no part of Cayman law". Put simply, appearing in a foreign Court to contest jurisdiction did not count as submission.
What counts as submission?
In deciding what counts as submission, the Board held that Cayman law should reflect the current law in England and Wales, namely the seminal case of Rubin v Eurofinance.
Key takeaways
The Board's approach to a legislative lacuna in Cayman is noteworthy. The Board analysed academic texts and English Hansard Debates, and compared the solutions of other common law jurisdictions. It was also emphasised that the "Cayman courts may decline to follow English court decisions where there is good reason to do so" [47].
Interestingly, the Board noted that some common law jurisdictions had adopted legislation similar to the English statute, and that others without a legislative equivalent had declined to follow Geoprosco. The Board highlighted a first instance case from Bannister J in the BVI to that effect. The Appellants had not been able to point to a single common law jurisdiction which followed the Rule in Geoprosco.
Although a Cayman judgment, the case may well have extra territorial influence in years to come in those jurisdictions where common law solutions have so far been found, but only at the first instance level.
Finally, and as a mark of the jurisprudential significance of the BVI, this judgment is one of a number of important decisions in which the Board was assisted by the BVI's the Honourable Dame Janice Pereira, who heard the appeal together with four permanent members.

Harneys successfully secured the appointment of a receiver by way of equitable execution over a Cyprus private company, in order to assist in the execution of a judgment against a villa in Limassol Marina.
Facts
Our client obtained a Singapore judgment for over USD 124 million plus interest against the defendants. After filing a common law action in Cyprus based on that judgment, the District Court of Larnaca issued a summary judgment, effectively recognising and localising the Singapore judgment in Cyprus against the judgment debtors.
Subsequent enforcement measures were pursued in Cyprus to target assets of the judgment debtors located within the jurisdiction.
One such asset was a villa at the Limassol Marina, for which no separate title deed had been issued. This, in turn, necessitated the filing of an application for the appointment of a receiver over the judgment debtor owning the villa and/or the villa itself.
Legal background
The Cyprus courts may appoint a receiver by way of equitable execution, where there exists a practical or legal hindrance or difficulty, which prevents enforcement through ordinary statutory means.
The courts must be satisfied that the receiver is likely to meaningfully assist in executing the judgment. The appointment is discretionary and grounded in equity principles.
This type of order is particularly appropriate, as in this case, when the debtor's interest in immovable property cannot be enforced under existing statutory provisions.
The case
Harneys argued that there was a legal impediment to execution against the property, as no separate title deed had been issued in the name of the judgment debtor.
The property, one of the villas at the Limassol Marina, is held by the judgment debtor under a long-term lease agreement with the Ministry of Energy, Commerce and Industry, as well as a sublease agreement with another Cyprus company.
Following the issuance of the summary judgment, the judgment creditor attempted to register a memorandum of judgment over the property, with the intention of initiating its sale under the provisions of the Cyprus Civil Procedure Law, Cap. 6. However, this was not possible. The District Lands Office of Limassol confirmed in writing that such registration could not be effected "since [the judgment debtor] is not the registered owner [of the property] as provided by the relevant legislation."
Relying on this confirmation, Harneys argued that the absence of registered title deed meant that no other legal mechanism was available to execute the judgment against the property. This constituted a clear impediment to execution against the property, thereby justifying the appointment of a receiver by way of equitable execution.
Ruling
The District Court of Larnaca held that, indeed, the absence of a separate title deed created a legal difficulty that prevented the property from being sold through the ordinary execution process.
Accordingly, the Court found it necessary to appoint a receiver with powers to take control of the property, assess its condition and proceed with a private sale by one of several possible means:
assignment of rights;
cancellation of the existing lease and sublease agreements and execution of new agreements with a buyer; or
even the transfer of rights from the lease and sublease agreements to a company, with the sale ultimately effected through the sale of that company's shares.
The Court concluded that this was an appropriate case for the appointment of a receiver, finding that there was a reasonable prospect that the receiver's involvement and the ancillary powers granted would substantially assist in the execution of the judgment.
Consequently, the Court appointed the proposed receiver, an experienced lawyer and insolvency practitioner, and issued ancillary orders to facilitate the execution process.
Comment
This decision is particularly significant in the context of cross-border litigation and judgment enforcement, as it demonstrates the Cyprus cour...

There has been a significant increase in the number of lenders enforcing against secured assets in the BVI, which has entailed an uptick in the appointment of out-of-court receivers. This guide highlights the types of disputes arising out of such appointments.
As many offshore companies operate as holding vehicles, security is often granted by way of share mortgage. The BVI Business Companies Act 2004 (BCA), provides a mortgagee with security over shares in a BVI company a statutory right to appoint receivers over those shares. That right is typically mirrored in the underlying security instrument.
The process for appointing receivers in the BVI is set out in the Insolvency Act 2003 (Insolvency Act).
Once appointed, out-of-court receivers act as agent for the mortgagor unless the instrument pursuant to which they are appointed provides otherwise. While receivers are generally personally liable for their actions, this agency affords them a degree of protection as they act in the name of and on behalf of the mortgagor.
BVI legislation is relatively light-touch on the powers granted to a receiver, generally deferring to what has been agreed and set out within the instrument pursuant to which the receiver is appointed. In the case of security over shares, the receiver will generally have the power to (1) sell the shares, (2) vote the shares, and (3) take such other steps as they consider necessary or desirable to protect, improve or realise the shares.
According to the Insolvency Act, receivers are subject to a primary duty to exercise their powers (1) in good faith and for a proper purpose and (2) in a way they believe (on reasonable grounds) to be in the best interests of the person on whose behalf they are appointed. To the extent consistent with these primary duties, a receiver has a secondary duty to have reasonable regard to the interests of certain interested parties, such as creditors and those with an interest in any equity of redemption.
As the number of receiverships increase, so does the range of issues being disputed by mortgagors, often seeking to prevent appointed receivers from exercising their powers. The following trends are beginning to emerge:
1. Challenges to appointment
A mortgagor seeking to resist having their security enforced will often start by challenging the validity of the receiver's appointment by reference to the security documents. The relevant documents must have been properly executed and valid, the right to appoint receivers must have accrued (usually contingent upon an event of default) and the necessary processes carried out to notify the mortgagor of the default and give effect to the receiver's appointment.
2. Extent to which the Insolvency Act applies to receiverships over shares in BVI companies owned by an individual or entity located elsewhere
The Insolvency Act has an entire part governing the appointment of receivers. However, there is ambiguity as to whether several key provisions, such as those setting out the duties of a receiver, apply to all receivers appointed in relation to assets in the BVI.
Various provisions apply specifically to a receiver of a 'company', a company being defined as a company in respect of whose assets a receiver is appointed, unless the context requires otherwise. The overarching definition of a 'company' in the Insolvency Act is restricted to BVI registered companies. Arguably, therefore, where a receiver is appointed over shares in a BVI company, but not the assets of a BVI company, these provisions do not apply.
This ambiguity can lead to disagreements over what steps should or should not be taken by receivers and provides fertile grounds for legal disputes.
3. Balancing duties
The tripartite nature of receiverships (between mortgagee, mortgagor and receiver) has given rise to extensive authority on how receivers ought to balance the various duties that arise. But there is no one-size-fits all solution: a receiver must evaluate the competing interests ...

In the recent judgment of TAX v FDQ, the BVI Court of Appeal provided guidance on the granting of anti-suit arbitration injunctions and the Court's supervisory jurisdiction over arbitrations commenced in the BVI.
Background
The applicant/appellant, TAX, and the respondent, FDQ, entered into a license agreement in 2018 and further agreed that any disputes arising out of the agreement would be arbitrated in accordance with the BVI Arbitration Act 2013. Their relationship subsequently broke down and on 21 January 2021, TAX initiated arbitration proceedings in the BVI (the 1st Arbitration).
The Final Award of the 1st Arbitration was handed down on 21 February 2023. On 23 March 2023, FDQ filed a Fixed Date Claim Form in the BVI High Court, seeking to challenge the Final Award by way of appeal. On the same date FDQ also filed a notice of application in the High Court for leave to appeal several points of law. The leave has been granted but the appeal is yet to be heard.
FDQ's Fixed Date Claim Form was heard in December 2023. On 25 June 2024, Mr Justice Wallbank ordered that the Final Award be set aside (the Setting Aside Order). In his judgment, Mr Justice Wallbank indicated that by setting aside the Final Award, this will give the parties opportunity to refer their disputes to a differently constituted tribunal if they so wish. TAX has since obtained leave to appeal the Setting Aside Order. The appeal also remains to be heard.
On 21 July 2025, FDQ started a new arbitration in the BVI (the 2nd Arbitration) with identical subject matter, factual background and issues as the 1st Arbitration.
On 29 July 2025, TAX applied to the BVI Court of Appeal for an interim injunction to restrain FDQ from pursuing the 2nd Arbitration.
Key legal issues
At the heart of this appeal is whether it is just and convenient to grant interim injunctive relief to restrain FDQ from pursuing the 2nd Arbitration while two appeals are pending.
The Court's starting point is that it may, in the exercise of its equitable jurisdiction and discretion, grant interim injunctive relief where satisfied that it is just and convenient to do so.
While acknowledging the policy imperatives in the Act against judicial interference in arbitration proceedings, the Court reiterated well-established case law, that the Court retains the power to prevent abuse of process in the conduct of Court or arbitral proceedings. It would exercise those powers of control only if necessary, and would do so judicially, not to interfere with an arbitration, but rather to restrain a party from abusing the process of a Court or arbitral tribunal or using either forum in an oppressive or unconscionable manner. This principle applies whether the arbitration is domestic or foreign.
Applying the above principles, the Court was be satisfied that it was just and proper to grant an interim injunction, subject to an undertaking in damages based on the following findings:
1. There are two pending appeals before the Court in relation to the 1st
2. Parties agree that the issues to be determined on appeal are similar to some of the issues that will arise in the 2nd Arbitration, including construction and meaning of the license agreement and liability.
3. If the 2nd Arbitration advances at the same time as the appeals, those issues would be considered in parallel.
4. By executing the arbitration agreement, the parties have agreed that the BVI is the seat of arbitration and that the Act is applicable, thereby submitting them to all stages of the arbitration process including any appeals that may be pursued under the Act. The 1st Arbitration will only conclude after the determination of the two appeals.
5. By attempting to pursue the 2nd Arbitration while the 1st Arbitration is in train, FDQ will cause duplication of efforts, expenditure and resources, which would run contrary to the overriding objective of the BVI Civil Procedure Rules (Revised Edition) 2023.
6. More fundamentally, such a course is manifestly...

It's a familiar dilemma: a debt remains unpaid under a contract and the creditor wishes to pursue payment of the debt.
The contract contains an arbitration agreement requiring disputes to be resolved in arbitration. The debtor disputes liability to pay the debt. The creditor is left to weigh its options - should it seek to wind up the company on the basis of the unpaid debt, or refer the dispute to arbitration?
Courts of several leading common law jurisdictions have long grappled with the inherent tension between insolvency proceedings and arbitration. In the past decade, this debate intensified following the decision of the English Court of Appeal in Salford Estates (No.2) Ltd vs Altomart Ltd (No.2)) ('Salford Estates').
Following Salford Estates, certain leading common law jurisdictions have diverged in their approach to the interaction between insolvency and arbitration proceedings. In particular, there has been a marked divergence in the approaches taken by the courts of Hong Kong when compared with the approach taken in England (and the leading offshore jurisdictions closely associated with it). Since 2023, this divergence has crystallised in the landmark decisions of the Hong Kong Court of Final Appeal in Re Guy Kwok-Hung Lam ('Re Guy Lam') and the decision of the Judicial Committee of the Privy Council4 in Sian Participation Corp v Halimeda International Ltd ('Sian Participation').
Now, Hong Kong law, as established in Re Guy Lam and subsequently Re Simplicity & Vogue Retailing (HK) Co Ltd [2024] 2 HKLRD 1064 ('Simplicity'), generally gives primacy to upholding arbitration agreements. The Hong Kong courts will stay winding up proceedings in favour of arbitration, unless there is a strong reason not to do so, such as the dispute being deemed frivolous or an abuse of process. In contrast, English law, following Sian Participation, requires a debtor to demonstrate a bona fide dispute on substantial grounds before a creditor's winding up petition will be dismissed or stayed.
Against this backdrop of divergent approaches, the recent decision by the Court of First Instance of the High Court of Hong Kong (the 'Hong Kong Court') in Hyalroute Communication Group Limited v Industrial and Commercial Bank of China (Asia) Limited [2025] HKCFI 2417 represents a significant and welcome development.
The case marks the first time the Hong Kong Court had to consider whether an anti-suit injunction should be granted to restrain a creditor from presenting a winding up petition in the Cayman Islands (or another similar common law jurisdiction which applies the Sian Participation approach) despite the existence of an arbitration agreement requiring the dispute to be 'finally resolved' through Hong Kong arbitration. It raises an important question as to the relevant law when the Hong Kong courts determine whether to restrain foreign winding up proceedings in jurisdictions that are now bound, or likely, to apply the approach in Sian Participation in favour of a Hong Kong arbitration.
Download the PDF to read the full article.
This article first appeared in Volume 22, Issue 6 of International Corporate Rescue and is reprinted with the permission of Chase Cambria Publishing - www.chasecambria.com

In a landmark decision of the Supreme Court of Bermuda ('Court'), Harneys and the joint provisional liquidators ('JPLs') of a Bermuda company (the 'Company') successfully argued that the Court's power to summon officers of a company in liquidation or provisional liquidation before it for a private examination and delivery up of books and records under the Companies Act, 1981 ('Companies Act') has extra-territorial effect.
The Company is a Class C long-term insurer registered under the Bermuda Insurance Act 1978 ('IA'), and is a segregated accounts company under section 6 of the Segregated Accounts Companies Act 2000 ('SAC Act'). It has been licenced by the Bermuda Monetary Authority ('BMA') since 2013.
Download the PDF to read the full article.
This article first appeared in Volume 22, Issue 6 of International Corporate Rescue and is reprinted with the permission of Chase Cambria Publishing - www.chasecambria.com

In Cyprus, companies that are struck off the official companies register maintained by the Department of Intellectual Property and Registrar of Companies in Cyprus (the Registerand the Registrar) can be restored, mainly, through two routes: (1) administrative restoration by the Registrar; or (2) Court-ordered restoration.
The appropriate route depends primarily on the reason for the strike-off and the time that has passed since the company was removed from the Register. This article outlines both processes and explains the key legal considerations involved.
Strike-off process
Under section 327(1) and (2A) of the Companies Law, Cap. 113 (the Law), a company that is not under a liquidation process may be struck off by the Registrar in the following scenarios where:
1. The Registrar believes the company is not carrying on business or is not .; or
2. The directors apply for strike-off to the Registrar, provided the company has fulfilled all legal obligations; or
3. Failure to pay the annual levy (which applied from 2011-2023, as now abolished) within one year from the due date; or
4. Failure by a variable capital investment company to file the required special resolution within the timeframe set by the Companies (Amendment) (No. 3) Law of 2021.
If the Registrar has reasonable cause to believe a company is inactive, as per scenario (1) above, then:
1. A first letter is sent requesting confirmation of the company's operational status.
2. If no response is received within one month, a second letter is issued within 14 days, warning that a strike-off notice will be published if the company does not reply within another month.
3. If there is still no response, a three-month notice is published in the Official Gazette.
4. During this period, the company, its members, or its creditors may file an objection showing that the company is active or compliant.
5. If no objection is made, the company is struck off the Register.
Administrative restoration
A company struck off by the Registrar may be restored administratively within 24 months of the strike-off date, following an application for restoration submitted to the Registrar
Who may apply?
The application for restoration may be filed by a director or a member of the company.
What must accompany the application?
For the purposes of the company meeting any outstanding requirements from before its strike-off date, the application must be accompanied by:
1. all outstanding filings including forms, reports, financial statements and documents due prior to the strike-off date;
2. any unpaid fees, charges, and/or fines for omissions that occurred and/or were imposed before the strike-off date;
3. a written consent from a competent representative of the Republic for the company's restoration, in the event that its assets and/or rights have been managed by the Republic; and
4. payment of a €20 fee, plus €20 if the procedure needs to be expedited.
If satisfied that at the time of the strike-off, the company was offering services or was in operation, and all legal requirements relevant to the circumstances have been met, the Registrar will restore the company by re-registering it on Register and issue the restoration certificate.
Following the restoration through the administrative route, the company is deemed to continue to exist as if it had not been struck off.
This option is undoubtedly faster, more cost-effective, and simpler than going through the Courts. However, it is only available within 24 months from the date that the company was struck off the Register.
Restoration by Court order
At any point between 2 - 20 years after the strike off, a company may be restored by Court order.
Who may apply to the Court?
The application for restoration may be filed before the Court of competent jurisdiction by:
1. the company itself; and
2. any member or a creditor of the company that feels dissatisfied with the strike-off, or has suffered damage as a result of the company's actions prior to the strike...

The enforcement toolkit available in the BVI is similar to many other common law jurisdictions. However, the BVI Courts have tailored their approach to meet the challenges a creditor may face when looking to enforce over a complex structure.
While it has its own legal system, the BVI is a British Overseas Territory. It is therefore heavily influenced by judicial decisions made in England and Wales - widely recognised as one of the fairest jurisdictions in the world. Parties also have the added benefit of being able to appeal to the Privy Council, where Supreme Court judges regularly hear appeals from the BVI.
This guide sets out a high-level overview of the areas in which we regularly assist our clients.
Subject to certain criteria being met, BVI Courts can recognise many foreign Judgments and have strong legal frameworks in place in this regard. Drawing from both common law and statute, the Courts offer well tested and flexible procedures that are adaptable to global developments.
Norwich Pharmacal Orders (NPOs)
In the BVI it is not compulsory to make publicly available all company records, such as minutes of meetings and the decisions behind the minutes. However, they are kept by a "registered agent" located on the island. Sometimes companies do make these records available and for a small fee we can check the record. Alternatively, if there has been wrongdoing, the BVI Courts have a powerful weapon in being able to compel the registered agents (and other entities such as banks and internet service providers) to release information to your client identifying wrongdoers, proving wrongdoing or identifying assets for enforcement. NPOs can be accompanied by "seal and gag" orders meaning that if successful, the registered agent cannot tell its client that such an order has been made.
Freezing injunctions
Where there is a risk that assets or proceeds may be dissipated, BVI Courts are frequently used to grant freezing injunctions. These are a powerful tool to prevent any steps being taken to dissipate assets pending the outcome of the wider proceedings (even if those proceedings are in other jurisdictions). The requirements to obtain a freezing injunction are similar to other common law jurisdictions but are flexible so as to recognise the way assets are held in offshore jurisdictions.
The BVI Courts have a statutory power to grant freezing injunctions in support of foreign proceedings which ensure that assets located in the BVI, including shares, are kept safe during the pendency of dispositive foreign litigation. This development is particularly helpful in the case of the BVI companies, as such companies typically conduct most or all of their business activities outside the BVI (such that the BVI may not be the most appropriate forum for asset recovery litigation).
Charging orders
BVI Courts have powers to grant charging orders over shares, property or other assets belonging to a debtor (to include beneficially ownership). If successful a charge will be imposed on a judgment debtor's assets. If the debt remains unsatisfied, further steps can be taken to enforce a sale of the charged asset to satisfy a judgment or other award.
Garnishee orders
Creditors can make an application to the BVI Courts for monies to be paid directly to them which are held by a third party. This method of enforcement is commonly used to take possession of funds held in a debtor's bank account.
Appointment of a receiver
One of the most powerful weapons in the BVI enforcement toolkit is the appointment of a receiver. Given offshore companies are often used as holding vehicles, receivership allows a receiver to take control of a corporate structure and move "downstream" to recover assets. In simple terms, a receiver can stand in the judgment debtor's shoes to gather in and realise property. This has the added advantage of immediately preventing a judgment debtor from dealing with that property.

Harneys successfully opposed a claimant's application seeking the Court's leave to testify via videoconference during civil proceedings, before the District Court of Limassol, due to alleged health issues that prevented the claimant from travelling to Cyprus to testify.
The claimant's request was based on section 36A of Evidence Law, Cap 9, which provides that, in criminal or civil proceedings, a Court in Cyprus may permit a witness located outside the country to testify via videoconference if it deems it to be in the interests of justice.
According to the same provision, videoconferencing refers to real-time audio and visual communication that enables the witness and courtroom participants (including the Court, the defendant, lawyers, interpreter, or assistants) to see and hear each other.
Where such request is approved, the Court may impose any conditions it considers necessary, provided that these do not conflict with Cyprus's obligations under any applicable bilateral or international conventions.
Therefore, for the Court to grant such leave, the following must be satisfied:
The witness shall be situated outside of Cyprus; andit is in the best interests of justice.
What constitutes the "interests of justice" is at the discretion of the Court, taking into account all the surrounding circumstances.
The Court held that the evidence submitted was insufficient to establish that granting leave to testify via videoconference would serve the interests of justice.
Although it was alleged that the claimant suffered from a "serious health problem," the medical certificate submitted failed to provide the Court with adequate detail or evidence regarding the claimant's actual state of health, that would justify a departure from the fundamental principle that trials should be conducted with witnesses physically present before the Court.
Accordingly, the Court dismissed the application.
This judgment is particularly noteworthy, as recent case law reflects a generally more permissive approach to such applications under the new Civil Procedure Rules, the overarching aim of which is to empower the Courts to resolve cases fairly, efficiently, and at a lower cost. Nevertheless, fairness demands solid evidence; without it, even modern conveniences such as videoconferencing cannot override fundamental trial principles.

Fraudsters sometimes choose offshore vehicles in their illegal schemes under the mistaken belief that the misappropriated assets will not be found or that the victims of fraud will not be able to identify the fraudsters.
This is completely wrong. The BVI Courts apply a well-known legal maxim originally developed by the English Courts in Lazarus Estates v Beasley [1956] 1 QB 702: "No Court in this land will allow a person to keep an advantage which has been obtained by fraud ... fraud unravels everything."
When can fraud cases be brought in the BVI?
To secure assistance from the BVI Courts in tackling fraud, there must be a nexus to the BVI that engages the Court's jurisdiction. This will invariably involve one or more BVI companies participating in the fraud. The role of the entities located in the BVI, and the circumstances of the individual case, will dictate the extent to which the BVI Courts can assist.
Claims arising out of fraud might be pursued in the BVI in the following circumstances:
1. Where entities that participated in the fraud are located in the BVI
For example, where BVI entities paid or received bribes, where BVI entities are used as conduits through which proceeds of wrongdoing are passed, or where BVI entities enter into sham contractual agreements to conceal the diversion of assets to third parties.
2. Where property situated in the BVI has been transferred for the purpose of defrauding creditors
For example, where the shares of a valuable BVI company are transferred to a third party to put those shares out of the reach of the transferor's creditors.
3. Where the proceeds of fraud are held by an entity located in the BVI, regardless of whether that entity is directly involved in the wrongdoing
For example, where a BVI company used as the vehicle of a fraud holds a bank account in a different jurisdiction, through which it routes the proceeds of its scam.
4. Where fraudulent acts took place in the BVI
Such as the issuing of fake invoices by a BVI company or the issuing of deliberately misleading or untruthful statements by a BVI company to attract investment into a fund.
What are the claims that can be brought to tackle fraud in the BVI?
The term "fraud" can encompass a wide variety of actions that share the common theme of dishonesty, there are various causes of action that can be pursued in the BVI depending on the circumstances of the case. The most obvious ones are as follows:
1. Where fraudulent statements have persuaded people to part with their money or other assets then a tortious claim for deceit may accrue, which would allow the victim to seek compensatory damages. Where a statement has led to the victim entering into a contract then a claim in fraudulent misrepresentation may accrue which will allow the contract to be set aside and/or a claim in damages.
2. A claim in bribery will arise in circumstances where a person or entity pays secret commissions to the agent of a person or entity with whom they are dealing and where the principal has no knowledge of the payment. Such payments will often be made to induce the agent to act other than in the best interests of their principal and to favour the bribe payer in some way, although there is no requirement to prove such inducement (it will be presumed).
3. If the director(s) of a BVI company have misapplied company assets or otherwise acted for an improper purpose, not in the best interests of the company and/or dishonestly then they will be in breach of their fiduciary duties, which gives the company a cause of action against the director(s). In addition, the breach of fiduciary duties by the director(s) may give rise to ancillary claims against third parties that had knowledge of the breach of fiduciary duties (see below).
4. Where there has been a payment of money or transfer of assets in breach of trust or breach of fiduciary duties, then a person or entity receiving the money or assets with knowledge of the breach of duties can be liable in "k...

There continues to be an upward trend in the use of schemes of arrangement, with or without the relevant company being in provisional liquidations, as a restructuring tool, particularly in relation to China-related debt. The Chinese property market continues to suffer significant challenges and points to further use of schemes of arrangement in the jurisdictions of incorporation. There continue to be coordinated approaches across offshore jurisdictions.
Discussion points include:
Recent schemes of arrangement that have been approvedThe increased willingness of the judiciary to assist struggling companies that have a realistic prospect of trading their way out of difficulty
Download the PDF to read more.
This article is an extract from GRR's Americas Restructuring Review 2022. The whole publication is available at https://globalrestructuringreview.com/review/restructuring-review-of-the-americas/2024.

In the British Virgin Islands, arbitration is principally regulated by the Arbitration Act 2013 (the Act), which came into force in 2014.
The Act is modelled upon the UNCITRAL Model Law on International Commercial Arbitration (the Model Law), subject to a number of local modifications. The Act is supplemented by the BVI IAC Arbitration Rules (the BVI Rules), which were brought into force in 2016.
BVI International Arbitration Centre
The BVI International Arbitration Centre (the IAC) also opened in 2016. The IAC was the first centre of its kind in the Caribbean to provide a forum for dispute resolution by way of arbitration. The IAC's Board of Directors is chaired by Mr John Beechey CBE, the former President of the International Court of Arbitration of the International Chamber of Commerce.
The BVI's central location between North and South America means that parties with business and other interests in those locations are able to choose a neutral territory in which to resolve their disputes. The IAC also provides a perfect venue for arbitrations involving BVI incorporated companies.
The centre itself provides a modern hi-tech facility in which parties from around the globe can expect international high-class standards in a politically neutral environment. Amongst the facilities provided at the centre are simultaneous language interpretation services, audio and video conferencing facilities and a concierge service.
BVI Arbitration Act 2013
The Act has three main features which are of interest:
1. It incorporates the UNCITRAL Model Law on International Commercial Arbitration (the Model Law) as adopted by the UN Commission which is recognised internationally.
2. The BVI is signatory to the UN Convention on Recognition and Enforcement of Foreign Arbitral Awards, commonly referred to as the New York Convention.
3. The option to opt-in to a right of appeal to Court on a question of law arising from the arbitral award.
In addition, other useful matters to note about the Act are the arbitral tribunal's power to consolidate two or more arbitrations in certain circumstances and a party's ability to apply to Court challenging the arbitral award on the ground of serious irregularity.
UNCITRAL Model Law
The incorporation of the Model Law into the Act enshrines well-established international principles. The same may be said of the BVI Rules as they are based on 2010 the UNCITRAL Arbitration Rules (the UNCITRAL Rules). The Act and UNCITRAL Rules recognise firstly, that the parties are free to choose the terms of the arbitration clause subject to the usual common law rules on validity; and secondly, the parties are able to appoint their preferred number of arbitrators.
The effect of the incorporation of the Model Law is that a number of matters codified in the Model Law apply to the Act. These are: (1) the arbitral tribunal's ability to rule on jurisdiction further to section 32; (2) the doctrine of severance or separability under section 32; (3) the ability to challenge the appointment of or to remove an arbitrator further to section 23; and (4) the power of the tribunal to grant interim measures under section 33. These provisions closely follow the Model Law.
Jurisdiction
Jurisdiction challenges are common in arbitration so it is important that the arbitral tribunal retains the power to rule on its own jurisdiction in order to avoid unnecessary delay. The tribunal can hear any objections with respect to its jurisdiction including in relation to the existence or validity of the arbitration agreement without needing to take the dispute to Court. The jurisdictional power of the arbitral tribunal includes the power to decide whether the tribunal is properly constituted and to decide what matters have been submitted for resolution in accordance with the arbitration agreement.
Severance
The doctrine of severance or separability further to section 32 of the Act gives the arbitral tribunal the power to sever the arbitration clause as a contract ...

The enforcement toolkit available in the BVI is similar to many other common law jurisdictions. However, the BVI Courts have tailored their approach to meet the challenges a creditor may face when looking to enforce over a complex structure.
While it has its own legal system, the BVI is a British Overseas Territory. It is therefore heavily influenced by judicial decisions made in England and Wales - widely recognised as one of the fairest jurisdictions in the world. Parties also have the added benefit of being able to appeal to the Privy Council, where Supreme Court judges regularly hear appeals from the BVI.
This guide sets out a high-level overview of the areas in which we regularly assist our clients.
Enforcement of foreign judgments
Subject to certain criteria being met, BVI Courts can recognise many foreign Judgments and have strong legal frameworks in place in this regard. Drawing from both common law and statute, the Courts offer well tested and flexible procedures that are adaptable to global developments.
Disclosure orders
Norwich Pharmacal Orders (NPOs)
In the BVI it is not compulsory to make publicly available all company records, such as minutes of meetings and the decisions behind the minutes. However, they are kept by a "registered agent" located on the island. Sometimes companies do make these records available and for a small fee we can check the record. Alternatively, if there has been wrongdoing, the BVI Courts have a powerful weapon in being able to compel the registered agents (and other entities such as banks and internet service providers) to release information to your client identifying wrongdoers, proving wrongdoing or identifying assets for enforcement. NPOs can be accompanied by "seal and gag" orders meaning that if successful, the registered agent cannot tell its client that such an order has been made.
Interim remedies
Freezing injunctions
Where there is a risk that assets or proceeds may be dissipated, BVI Courts are frequently used to grant freezing injunctions. These are a powerful tool to prevent any steps being taken to dissipate assets pending the outcome of the wider proceedings (even if those proceedings are in other jurisdictions). The requirements to obtain a freezing injunction are similar to other common law jurisdictions but are flexible so as to recognise the way assets are held in offshore jurisdictions.
The BVI Courts have a statutory power to grant freezing injunctions in support of foreign proceedings which ensure that assets located in the BVI, including shares, are kept safe during the pendency of dispositive foreign litigation. This development is particularly helpful in the case of the BVI companies, as such companies typically conduct most or all of their business activities outside the BVI (such that the BVI may not be the most appropriate forum for asset recovery litigation).
Methods of enforcement
Charging orders
BVI Courts have powers to grant charging orders over shares, property or other assets belonging to a debtor (to include beneficially ownership). If successful a charge will be imposed on a judgment debtor's assets. If the debt remains unsatisfied, further steps can be taken to enforce a sale of the charged asset to satisfy a judgment or other award.
Garnishee orders
Creditors can make an application to the BVI Courts for monies to be paid directly to them which are held by a third party. This method of enforcement is commonly used to take possession of funds held in a debtor's bank account.
Appointment of a receiver
One of the most powerful weapons in the BVI enforcement toolkit is the appointment of a receiver. Given offshore companies are often used as holding vehicles, receivership allows a receiver to take control of a corporate structure and move "downstream" to recover assets. In simple terms, a receiver can stand in the judgment debtor's shoes to gather in and realise property. This has the added advantage of immediately preventing a judgment debtor from...

In the British Virgin Islands, arbitration is principally regulated by the Arbitration Act 2013 (the Act), which came into force in 2014.
The Act is modelled upon the UNCITRAL Model Law on International Commercial Arbitration (the Model Law), subject to a number of local modifications. The Act is supplemented by the BVI IAC Arbitration Rules (the BVI Rules), which were brought into force in 2016.
BVI International Arbitration Centre
The BVI International Arbitration Centre (the IAC) also opened in 2016. The IAC was the first centre of its kind in the Caribbean to provide a forum for dispute resolution by way of arbitration. The IAC's Board of Directors is chaired by Mr John Beechey CBE, the former President of the International Court of Arbitration of the International Chamber of Commerce.
The BVI's central location between North and South America means that parties with business and other interests in those locations are able to choose a neutral territory in which to resolve their disputes. The IAC also provides a perfect venue for arbitrations involving BVI incorporated companies.
The centre itself provides a modern hi-tech facility in which parties from around the globe can expect international high-class standards in a politically neutral environment. Amongst the facilities provided at the centre are simultaneous language interpretation services, audio and video conferencing facilities and a concierge service.
BVI Arbitration Act 2013
The Act has three main features which are of interest:
1. It incorporates the UNCITRAL Model Law on International Commercial Arbitration (the Model Law) as adopted by the UN Commission which is recognised internationally.
2. The BVI is signatory to the UN Convention on Recognition and Enforcement of Foreign Arbitral Awards, commonly referred to as the New York Convention.
3. The option to opt-in to a right of appeal to Court on a question of law arising from the arbitral award.
In addition, other useful matters to note about the Act are the arbitral tribunal's power to consolidate two or more arbitrations in certain circumstances and a party's ability to apply to Court challenging the arbitral award on the ground of serious irregularity.
UNCITRAL Model Law
The incorporation of the Model Law into the Act enshrines well-established international principles. The same may be said of the BVI Rules as they are based on 2010 the UNCITRAL Arbitration Rules (the UNCITRAL Rules). The Act and UNCITRAL Rules recognise firstly, that the parties are free to choose the terms of the arbitration clause subject to the usual common law rules on validity; and secondly, the parties are able to appoint their preferred number of arbitrators.
The effect of the incorporation of the Model Law is that a number of matters codified in the Model Law apply to the Act. These are: (1) the arbitral tribunal's ability to rule on jurisdiction further to section 32; (2) the doctrine of severance or separability under section 32; (3) the ability to challenge the appointment of or to remove an arbitrator further to section 23; and (4) the power of the tribunal to grant interim measures under section 33. These provisions closely follow the Model Law.
Jurisdiction
Jurisdiction challenges are common in arbitration so it is important that the arbitral tribunal retains the power to rule on its own jurisdiction in order to avoid unnecessary delay. The tribunal can hear any objections with respect to its jurisdiction including in relation to the existence or validity of the arbitration agreement without needing to take the dispute to Court. The jurisdictional power of the arbitral tribunal includes the power to decide whether the tribunal is properly constituted and to decide what matters have been submitted for resolution in accordance with the arbitration agreement.
Severance
The doctrine of severance or separability further to section 32 of the Act gives the arbitral tribunal the power to sever the arbitration clause as a contract ...

The Supreme Court of The Bahamas has recently ruled in Gabriele Volpi v Delanson Services Ltd & ors, providing a clear statement on when a court will refuse to halt an arbitration because of a pending challenge to the tribunal.
Background
The dispute concerned three Bahamian family trusts - the Winter, Spring and Summer Trusts (the Trusts) - which were settled for the benefit of the Volpi family by Gabriele Volpi, an Italian-Nigerian businessman with substantial interests in logistics, ports and energy. Mr Volpi's children, Matteo, Simone and Isabella, were discretionary beneficiaries.
In 2016 the corporate trustee, Delanson Services Ltd (Delanson), distributed the entire assets of the Trusts to Garbriele Volpi. Matteo Volpi challenged those distributions, claiming they were made in breach of trust and contrary to Delanson's duties to the wider family. Matteo alleged that his father had directed or authorised the payments and that Delanson had simply followed his wishes. The trust instruments contained exclusive arbitration clauses, therefore the dispute was referred to arbitration seated in The Bahamas.
A three-member arbitration tribunal was appointed, comprising Lord Neuberger of Abbotsbury, Dr Georg von Segesser and Professor Alberto Malatesta (the Tribunal). The proceedings were divided into two phases, dealing with liability and quantum.
In June 2020 the Tribunal issued a Phase I partial award finding that the distributions were in breach of trust and that Gabriele had known this when he received them. Court challenges to that award by Gabriele and Delanson were dismissed, and Phase II (quantum and valuation) was listed for a hearing in October 2025.
Days before that hearing, Gabriele began fresh court proceedings seeking to remove the Tribunal under section 35 of the Bahamian Arbitration Act 2009 (the Removal Claim) based on allegations that several procedural decisions showed bias or unfairness. He also asked the Supreme Court to stay the arbitration until that removal claim could be determined.
Matteo opposed the stay, arguing that the removal claim was weak and that any further delay would cause serious prejudice, as the arbitration had already been running for seven years. Delanson, Simone and Isabella supported the stay.
The issues
The question for Chief Justice Winder was whether to exercise the Court's discretion to stay the arbitration while the Removal Claim was pending. The question was therefore whether the Removal Claim had sufficient merit to justify a stay and where the balance of prejudice lay between the parties.
The judgment
Following a review of the Court's powers under section 16(3) of the Supreme Court Act and rule 26.1(2)(q) of the Civil Procedure Rules, alongside section 45(1) of the Arbitration Act, which confirms that procedural and evidential matters are for the Tribunal, Winder CJ refused the stay. In doing so, Winder CJ also noted that Article 17(1) of the UNCITRAL Rules requires the Tribunal to treat the parties equally and to avoid unnecessary delay or expense.
Winder CJ accepted that stays of this kind are exceptional. Drawing on guidance from Justice Klein in an earlier judgment between the same parties, Delanson Services Ltd v Volpi & ors, he held that a stay depends on the balance of harm, the prospects of the underlying challenge and the broader policy of arbitration proceeding without interruption.
After reviewing the alleged procedural missteps, including the Tribunal's refusal to recuse itself after viewing a document said to be privileged, the Court found that the Tribunal's reasoning was detailed and fair. The recusal decision (Procedural Order No 26) showed that the contested document was irrelevant to quantum, and that exposure to such material did not indicate bias.
In arriving at his decision, Winder CJ noted that the arbitration had already "been delayed some four years as a result of stays pending challenges and appeals by Gabriele and Delanson" and commented that while "b...

The Cayman Islands Court of Appeal has refused a renewed application for leave to appeal in Frye-Chaikin v Bradley, affirming a Grand Court summary judgment grounded in foreign issue estoppel arising from prior Michigan proceedings. The decision underscores the high threshold for leave to appeal, the potency of foreign issue estoppel, and the litigation risk of attempting to revisit merits arguments already determined abroad.
The dispute stemmed from a 2014 agreement to sell a Cayman property. The plaintiffs originally issued Cayman proceedings, but at the defendant's urging, the action was stayed on forum grounds so the matter could be determined in Michigan (where the parties lived). After a contested hearing, the Michigan Circuit Court granted summary judgment upholding the property sale agreement and ordered specific performance. The defendant's subsequent appeal to the Michigan Court of Appeal was dismissed and the Michigan Supreme Court refused leave. When the defendant still did not comply, the Circuit Court signed the sale agreement on her behalf. Relying on those outcomes, the plaintiffs obtained Cayman summary judgment in September 2024. The defendant's subsequent leave to appeal this summary judgment was refused in the Grand Court and by a single judge of the Court of Appeal. The defendant then renewed her application before the full Court of Appeal.
The Court of Appeal held that any appeal had no real, as opposed to fanciful, prospect of success and agreed with the single appeal judge that the requirements for foreign issue estoppel were satisfied (relying on Dicey, Morris and Collins on The Conflict of Laws):
The Michigan courts were competent;
Their judgments were final, conclusive and on the merits;
The parties were the same; and
The issues now raised in Cayman were the same as those determined in Michigan.
It was therefore too late to revisit the merits in this jurisdiction.
In reaching their conclusion, the Court of Appeal also considered and agreed with the single judge's analysis regarding the test for summary judgment under Cayman law, being whether the defendant has a realistic, as opposed to a fanciful, defence and one that is more than merely arguable (derived from the English case of Easyair v Opal Telecom).
The defendant, acting in person, repeated and expanded on her complaints about the agreement's validity, alleged duress, unconscionability, evidential falsity, and impropriety in the Michigan proceedings, and contended the Grand Court should have engaged those points under Cayman law.
The Court of Appeal held that such submissions did not confront the basis of the Grand Court's decision, being issue estoppel. Having successfully contended at the outset that Michigan was the appropriate forum, the defendant was bound by the Michigan outcomes and could not re-argue the dispute in Cayman. To the extent any points were not advanced in Michigan but could and should have been, it was now too late.
Final, merits-based decisions of competent foreign courts between the same parties on the same issues will be given issue-estoppel effect in Cayman.
Parties who secure an overseas forum should expect to be held to the result; Cayman will not readily offer a second bite at the cherry.
Summary judgment remains a robust filter. Defences foreclosed by estoppel, or that are merely fanciful, will be disposed of summarily, saving cost and time.

There is increasing demand in the PRC for obtaining grants from the BVI Probate Court. A grant of probate is typically required in order to validly deal with BVI assets held by a deceased person. In this update, we share some key points from our significant experience in handling probate applications originating from the PRC.
The most common probate applications we deal with at Harneys in Shanghai involve shares in BVI companies. Pursuant to the BVI Business Companies Act, shares in BVI companies are deemed to be situated in the BVI. Accordingly, it is necessary for the appropriate grant to be obtained from the BVI Probate Court before the deceased's interest in a BVI company can be validly transferred to the intended legatee or heir (often resident in the PRC).
When it comes to the application itself, the applicant needs to submit various documents. The two key documents are:
As the deceased was typically domiciled in the PRC, an affirmation by a PRC lawyer is required confirming the validity of the will and explaining why the personal representative is entitled under the laws of the PRC to administer the estate. Not all PRC lawyers are willing to comment on the validity of the will, because as a matter of practice this may involve assuming liability should there be any issue subsequently arising as to the validity of the will. Competing heirs may make a claim against the PRC lawyer for any perceived loss of his or her share in the deceased estate.
The issue of will marking will not arise if no will is available; the intestacy rules governing the shares in BVI companies as movable assets are those of the deceased's jurisdiction of domicile, hence normally the PRC.However, if there is a will that is to form the basis of an application for a grant of probate or letters of administration under the Eastern Caribbean Supreme Court (Non-Contentious Probate and Administration of Estates) Rules 2017, then the will must be 'marked' by the applicant with the standard oath and signature.
In the PRC, the marking is to be done before a notary public. Afterwards, the notarised documents will be further apostilled under the Convention Abolishing the Requirement of Legalisation for Foreign Public Documents before it may be recognised in the BVI. An issue we frequently encounter is that because the Convention only came into effect in the PRC on 7 November 2023, local Foreign Affairs Offices have relatively little experience dealing with cases that require will marking.
With the added complication that under PRC law a will may be invalid if it is marked, local Foreign Affairs Offices are typically cautious to apostille such documents which can result in the initial rejection of an application. We have encountered delays in multiple provinces including Fujian, but have had considerably more success in our cases in Beijing and Shanghai. We expect that efficiencies will improve as local Foreign Affairs Offices become more familiar with the Convention and their obligations arising therefrom.
The long-established practice of PRC nationals using BVI companies as holding vehicles means there is an inevitable demand for BVI probate grants and letters of administration. Harneys has considerable experience in this field, and works closely with local counsel to ensure the process of notarisation and apostilling of the will 'marking' goes smoothly - bridging the differences between the two legal systems. If you would like to learn more about the process, or require assistance with BVI probate, please contact the author or your usual Harneys contact.

In the follow up to their article on recent guidance from the Cayman Islands' courts on fraudulent trading claims, Harneys partner James Eggleton and counsel Anya Allen unpack the UK Supreme Court's decision and its relevance for the Cayman Islands.
This is the second article in a two-part series on recent decisions concerning fraudulent trading claims under Section 147 of the Cayman Islands Companies Act and Section 213 of the UK Insolvency Act, being Conway & Ors v Air Arabia [2025] CIGC (FSD) 41 (20 May 2025) and Bilta & Ors v Tradition Finance Services [2025] UKSC 18 (7 May 2025).
Bilta & Ors v Tradition Finance Services
Bilta was one of several companies which were vehicles in a missing trader intra-community fraud involving spot trading in carbon credits under the EU Emissions Trading Scheme. Spot trading in EU allowances within EU Member States at that time attracted VAT. The rules were changed when the authorities realised that the EU Allowances were being used in relation to such fraud. In this case, the fraud involved five companies which were left with enormous VAT liabilities owing to HMRC.
The companies issued a claim against Tradition Financial Services alleging that it had dishonestly assisted their directors in the breach of their fiduciary duties to the claimant companies. The liquidators also brought a claim under Section 213 of the Insolvency Act alleging that Tradition had knowingly participated in the fraudulent trading of the businesses of the claimant companies. The parties reached a partial settlement, leaving two substantive issues for the Court to decide.
The UK Supreme Court addressed two key issues. Firstly, whether the persons who may be required to make contributions to a company's assets under Section 213 of the UK Insolvency Act are confined to those involved in the management or control of the business, or extend also to third party "outsiders". Those "outsiders" include, for example, those who have transacted with the company in the knowledge that by those transactions, the company was carrying on business for a fraudulent purpose.
Secondly, the court looked at the operation of Section 32(1) of the UK Limitation Act, which defers the commencement of limitation periods in fraud cases to the point at which the claimant has discovered or could with reasonable diligence have discovered, the fraud. It considered the effect of the legislation within the context of a related claim brought by the company in dishonest assistance, during the period in which the company had (prior to its restoration) ceased to exist.
Issue 1: Whether Tradition fell within the scope of Section 213
The UK Supreme Court considered the scope of the words in Section 213(2): "any persons who were knowingly parties to the carrying on of the business in the manner above-mentioned."
Tradition argued that the words were restricted to persons exercising management or control over the company in question, such that it should not, and could not, be treated as a party to the carrying on of the fraudulent business.
Applying principles of statutory interpretation and by reference to previous authorities, the court noted that certain features of the statutory language contained in Section 213 limit the circumstances in which liability may be incurred under Section 213, as follows:
The person must be a party to the carrying on by the company of a fraudulent business and not merely involved in a one-off fraudulent transaction, unless that fraud is sufficient evidence on its own of the carrying on of a fraudulent business;
Being a party to the carrying on by the company of a fraudulent business does not extend to a mere failure to advise; and
The person liable must have had an active involvement in the carrying on of the fraudulent business by the company.
However, the Supreme Court held that subject to those limitations, there is nothing in the language of Section 213(2) which restricts the scope of the provision to directors and "insid...

Recent guidance on Section 147 fraudulent trading claims in Conway v Air Arabia
Harneys partner James Eggleton and counsel Anya Allen in the Cayman Islands examine two recent authorities on fraudulent trading claims in complex cases, from the Grand Court of Cayman Islands in the first instalment of a two-part series and from the UK Supreme Court in the second instalment.
There is, perhaps surprisingly given the breadth of its potential application, very little authority in the Cayman Islands concerning fraudulent trading claims under Section 147 of the Cayman Islands Companies Act.
This two-part series considers two recent decisions from the Cayman Islands Grand Court concerning Section 147 and the UK Supreme Court concerning the corresponding English provision (Section 213 of the UK Insolvency Act 1986), being Conway & Ors v Air Arabia [2025] CIGC (FSD) 41 (20 May 2025) and Bilta & Ors v Tradition Finance Services [2025] UKSC 18 (7 May 2025).
Conway & Ors v Air Arabia
The proceedings arose out of the collapse of the Abraaj group of companies in early 2018.
The defendant company, UAE airline Air Arabia, had submitted two proofs of debt in the liquidation of Abraaj Holdings (AH) in connection with loans it had made to AH. The airline had also been appointed to AH's liquidation committee.
The liquidators commenced proceedings against Air Arabia for a declaration pursuant to Section 147 that the airline had knowingly been a party to AH's business being carried out with intent to defraud creditors and/or for a fraudulent purpose, and was accordingly liable to contribute to AH's assets.
The Cayman court addressed several novel points relating to Section 147 claims against persons outside of the jurisdiction.
Issue 1: Does submitting a proof of debt in a foreign liquidation amount to submitting to jurisdiction?
The court first considered whether Air Arabia lodging a proof of debt in AH's Cayman Islands' liquidation amounted to submission to the offshore jurisdiction.
It was not in dispute that submitting to the jurisdiction is separate from establishing the jurisdiction of the court over a person by service of process. Where the court's jurisdiction over a defendant is based on voluntary submission, the rules relating to service out are irrelevant because the court's jurisdiction is not founded on service.
Air Arabia and AH also agreed that lodging a proof of debt in a winding up process amounted to a submission to the jurisdiction of the court with conduct of the winding up, even if the proof of debt has not been adjudicated or is ultimately rejected.
However, the parties disagreed as to the scope of the submission to the jurisdiction which results from lodging a proof of debt. The liquidators argued that lodging a proof of debt amounts to a submission to the jurisdiction of the court for all purposes connected with the winding up of the company. Air Arabia argued that the submission was narrow and did not extend to submission for the purposes of claims that liquidators might bring under Section 147 of the Companies Act.
The presiding judge, Justice Asif KC, held that submission to the jurisdiction by lodging a proof of debt is effective for all purposes connected with the winding up of the company (including any claims brought under Section 147 of the Companies Act).
The principles expressed in English and BVI authorities favoured this approach. The judge held they are general common law principles that apply with equal force in the Cayman Islands.
Those common law principles include the UK Supreme Court's decision in Rubin v Eurofinance SA [2012] UKSC 46. There, the court held that there is no doubt that orders may be made against a foreign creditor who proves in an English liquidation or bankruptcy, on the basis that by proving, the foreign creditor submits to the jurisdiction of the English court. A creditor should not be allowed to benefit from the insolvency proceeding without the burden of complying with the orders made i...

In 2017, Singapore incorporated the UNCITRAL Model Law on Cross-Border Insolvency (the 'Model Law') into its domestic legislation,1 providing a comprehensive and structured framework for the recognition and assistance of foreign corporate insolvency proceedings.
By contrast, the offshore jurisdictions of the British Virgin Islands, the Cayman Islands, and Bermuda have not adopted the Model Law. Each relies on its own domestic statutory mechanisms and common law principles. The Singapore Model Law regime thus provides a useful reference point against which to examine the more varied approaches taken in the BVI, Cayman and Bermuda.
This article offers a comparative analysis of the recognition regimes with a view to identifying the practical tools available to insolvency practitioners seeking recognition and assistance in these jurisdictions.
This article addresses certain aspects of Singapore law for general informational purposes only. Harney Westwood & Riegels do not practise Singapore law and its contents should not be construed or relied upon as legal advice on Singapore law.
Download the PDF to read the full article.
This article first appeared in Volume 22, Issue 5 of International Corporate Rescue and is reprinted with the permission of Chase Cambria Publishing - www.chasecambria.com