Mr Andrew Thorp

Andrew Thorp

Updates

Arbitration & ADR

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

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

The BVI Commercial Court – interfacing with arbitration
British Virgin Islands | 27 February 2014

Recent Commercial Court decisions have shaped the applicability and enforcement of arbitration clauses and how they interface with BVI statutory remedies and liquidations. Parties to arbitration should have one eye on the efficacy of future enforcement and be aware that blurred awards containing matters that may not properly have been subject of arbitration may prove to frustrate the ability to enforce in the British Virgin Islands.

Company & Commercial

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

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

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

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

Corporate Finance/M&A

Seeking fair value: court provides guidance for appraisers valuing shares
British Virgin Islands | 18 February 2015

The BVI Commercial Court recently issued important guidance to accountancy professionals, BVI companies and their shareholders as to how shares should be valued following a squeeze-out, merger or dissent from other restructuring provisions. The decision is consistent with the court's proactive stance in assisting parties utilising the restructuring mechanisms provided under the act.

Insolvency & Restructuring

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

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

Green light for liquidators to draw interim payments without fee approval
British Virgin Islands | 11 November 2016

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

Appointment of receivers in the British Virgin Islands
British Virgin Islands | 29 April 2016

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

Exercise of discretion to wind up company not "head-counting exercise"
British Virgin Islands | 25 March 2016

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

BVI insolvency law in 60 seconds
British Virgin Islands | 06 November 2015

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

Power to assist foreign insolvency proceedings
British Virgin Islands | 19 December 2014

Since Rubin v Eurofinance, enforcement of judgments in insolvency proceedings is no longer elevated above that of other foreign judgments. However, Singularis Holdings Limited v PricewaterhouseCoopers demonstrates that the ability of foreign office holders to seek assistance such as disclosure continues to develop, through both statute and the common law.

Court hands down key judgment on hedge fund insolvencies
British Virgin Islands | 05 April 2013

A recent court of appeal decision provided an important ruling on the question of where investors stand in the 'waterfall' of distributions in the liquidation of investment funds under BVI law. The court affirmed the widely held industry view that debts owed to former members for redemption proceeds confer on them deferred creditor status. The decision brings certainty and will be welcomed by investors and insolvency practitioners.

Litigation

Reverse engineering: Court of Appeal in rare reversal of findings of fact
British Virgin Islands | 04 December 2018

The BVI Court of Appeal recently considered the scope of its jurisdiction to interfere with findings of fact made at first instance. This is the second time in 2018 that the court has addressed this issue. While the threshold for intervention is high, the court will intervene on appropriate occasions. The thoroughness of the evaluation of evidence and the credibility of the judge's conclusions at first instance are likely to be pivotal to that determination.

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

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

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

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

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

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

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

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

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

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

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

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

BVI leave requirements in derivative actions by foreign companies
British Virgin Islands | 01 November 2016

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

Costs clarity: Commercial Court finds foreign lawyers' costs generally recoverable
British Virgin Islands | 30 August 2016

The BVI Commercial Court recently handed down new guidance which clarifies its position on the recoverability of foreign lawyers' costs and underlines its clear intent to accommodate and provide practical solutions for international litigation in the British Virgin Islands.

Shareholder disputes: when is just and equitable liquidation appropriate?
British Virgin Islands | 01 September 2015

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

Courts consider arbitration agreements and default judgments
British Virgin Islands | 02 September 2014

Recent decisions have looked at two important aspects of offshore litigation: the impact of arbitration agreements and default judgments. One reaffirmed that the language of an arbitration clause must make the resolution of disputes by arbitration mandatory; the other showed that a party served with a BVI claim which fails to take any steps in the proceedings faces the risk of having a default judgment entered against it.

Multiple derivative actions: tried but not tested?
British Virgin Islands | 14 January 2014

The Court of Appeal recently decided Microsoft Corporation v Vadem Ltd. The judgment initially appears definitive – that "BVI law does not permit double derivative proceedings". However, the manner in which the case was presented and recent developments in English case law suggest that, while the BVI Business Companies Act does not provide for double derivative actions, at common law the jurisdiction may live on.

BVI case notes
British Virgin Islands | 17 September 2013

Recent cases from the BVI courts include further developments in Black Swan relating to free-standing relief, insolvency assistance to foreign office holders, economic torts and unjust enrichment and clarification of the meaning of 'member' under BVI company law.

Derivatives, double derivatives and unfair prejudice
British Virgin Islands | 07 May 2013

The BVI courts have recently handed down two decisions regarding the Business Companies Act. The first case concerned Microsoft's ability to bring a double derivative action in the Delaware Court of Chancery in the name of a BVI company. The second case involved the introduction of an unauthorised derivative claim into a personal claim by a shareholder. Both judgments provide greater clarity.

Litigating in the BVI courts
British Virgin Islands | 12 April 2011

The global financial crisis has placed an increased focus on the British Virgin Islands as an offshore jurisdiction. A major centre for mutual and hedge funds, captive insurers and wealth planning vehicles, such as trusts, the jurisdiction has been at the forefront of many recent developments, heightening its reputation as a reliable and efficient centre for international dispute resolution.

Recent case law and court changes
British Virgin Islands | 04 May 2010

New Commercial Court rules now apply in the British Virgin Islands, dealing with a number of procedural points. In addition, there continue to be numerous issues surrounding the creditor/investor debate in fund litigation. Further, in a recent case the BVI High Court held that it was within its discretion to grant a standalone freezing injunction in support of foreign proceedings.

Private Client & Offshore Services

Reverse engineering: Court of Appeal in rare reversal of findings of fact
British Virgin Islands | 29 November 2018

The BVI Court of Appeal recently considered the scope of its jurisdiction to interfere with findings of fact made at first instance. This is the second time in 2018 that the court has addressed this issue. While the threshold for intervention is high, the court will intervene on appropriate occasions. The thoroughness of the evaluation of evidence and the credibility of the judge's conclusions at first instance are likely to be pivotal to that determination.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Asset tracing in the British Virgin Islands
British Virgin Islands | 09 July 2015

Confidentiality of corporate documents and information is one of the key attractions of incorporating a company in the British Virgin Islands. In light of this, what means are available to a party in the British Virgin Islands which seeks to recover property that has been misappropriated, where the identity of the wrongdoer or the whereabouts of the misappropriated property is unknown?

Seeking fair value: court provides guidance for appraisers valuing shares
British Virgin Islands | 19 February 2015

The BVI Commercial Court recently issued important guidance to accountancy professionals, BVI companies and their shareholders as to how shares should be valued following a squeeze-out, merger or dissent from other restructuring provisions. The decision is consistent with the court's proactive stance in assisting parties utilising the restructuring mechanisms provided under the act.

Power to assist foreign insolvency proceedings
British Virgin Islands | 18 December 2014

Since Rubin v Eurofinance, enforcement of judgments in insolvency proceedings is no longer elevated above that of other foreign judgments. However, Singularis Holdings Limited v PricewaterhouseCoopers demonstrates that the ability of foreign office holders to seek assistance such as disclosure continues to develop, through both statute and the common law.

Courts consider arbitration agreements and default judgments
British Virgin Islands | 28 August 2014

Recent decisions have looked at two aspects of offshore litigation: the impact of arbitration agreements and default judgments. One decision reaffirmed that the language of an arbitration clause must make the resolution of disputes by arbitration mandatory, while another showed that a party served with a BVI claim which fails to take any steps in the proceedings faces the risk of having a default judgment entered against it.

Door opened to foreign enforcement actions in the BVI
British Virgin Islands | 06 March 2014

The law relating to the BVI courts' authority to enforce a foreign judgment has changed due to a successful court action in the Court of Appeal. The decision was quickly followed by a change in the civil procedure rules to reflect the judgment. The change in the law provides access to a raft of enforcement provisions such as charging orders, orders for sale and attachment orders.

The Commercial Court – interfacing with arbitration
British Virgin Islands | 27 February 2014

Recent Commercial Court decisions have shaped the applicability and enforcement of arbitration clauses and how they interface with BVI statutory remedies and liquidations. Parties to arbitration should have one eye on the efficacy of future enforcement and be aware that blurred awards containing matters that may not properly have been subject of arbitration may prove to frustrate the ability to enforce in the British Virgin Islands.

Multiple derivative actions: tried but not tested?
British Virgin Islands | 09 January 2014

The Court of Appeal recently issued its ruling in Microsoft Corporation v Vadem Ltd. The judgment initially appears quite definitive – that "BVI law does not permit double derivative proceedings". However, the manner in which the case was presented and recent developments in English case law suggest that, while the BVI Business Companies Act 2004 does not provide for double derivative actions, at common law the jurisdiction may well live on.

BVI case notes
British Virgin Islands | 12 September 2013

Recent cases from the BVI courts include further developments in Black Swan relating to free-standing relief, insolvency assistance to foreign office holders, economic torts and unjust enrichment and clarification of the meaning of 'member' under BVI company law.

Commercial Court rules on third-party costs and freezing relief
British Virgin Islands | 27 June 2013

Recent cases out of the BVI Commercial Court deal with issues including third-party costs and the applicability of Black Swan freezing relief in support of foreign derivative claims. The former has now become an authority for the proposition that a non-party cannot be liable for costs in proceedings where it has not been joined and which were not being conducted with its approval or for its benefit.

Derivatives, double derivatives and unfair prejudice
British Virgin Islands | 09 May 2013

The BVI courts have recently handed down two decisions regarding the Business Companies Act. The first case concerned Microsoft's ability to bring a double derivative action in the Delaware Court of Chancery in the name of a BVI company. The second case involved the introduction of an unauthorised derivative claim into a personal claim by a shareholder. Both judgments provide greater clarity.

Court hands down key judgment on hedge fund insolvencies
British Virgin Islands | 04 April 2013

A recent appeal court decision provided an important ruling on the question of where investors stand in the 'waterfall' of distributions in the liquidation of investment funds under BVI law. The court affirmed the widely held industry view that debts owed to former members for redemption proceeds confer on them deferred creditor status. The decision brings certainty and will be welcomed by investors and insolvency practitioners.

Derivatives, double derivatives and unfair prejudice
British Virgin Islands | 07 February 2013

In two recent cases the courts have considered the application of the Business Companies Act. In the first, Microsoft made an application for leave under Section 184C to bring a derivative claim in the Delaware Court of Chancery in the name of a BVI company; while in the second, the BVI High Court Commercial Division considered the issue of the interaction of Sections 184C and 184I of the act.

Litigating in the BVI courts
British Virgin Islands | 14 April 2011

The global financial crisis has placed an increased focus on the British Virgin Islands as an offshore jurisdiction. A major centre for mutual and hedge funds, captive insurers and wealth planning vehicles, such as trusts, the jurisdiction has been at the forefront of many recent developments, heightening its reputation as a reliable and efficient centre for international dispute resolution.

Recent case law and court changes
British Virgin Islands | 29 April 2010

New Commercial Court rules now apply in the British Virgin Islands, dealing with a number of procedural points. In addition, there continue to be numerous issues surrounding the creditor/investor debate in fund litigation. Furthermore, in a recent case the BVI High Court held that it was within its discretion to grant a standalone freezing injunction in support of foreign proceedings.

White Collar Crime

Asset tracing in the British Virgin Islands
British Virgin Islands | 13 July 2015

Confidentiality of corporate documents and information is one of the key attractions of incorporating a company in the British Virgin Islands. In light of this, what means are available to a party in the British Virgin Islands which seeks to recover property which has been misappropriated, where the identity of the wrongdoer or the whereabouts of the misappropriated property is unknown?