Mr Marc Kish

Marc Kish

Updates

Arbitration & ADR

Court of Appeal enforces foreign arbitral award in favour of Brazilian airline
Cayman Islands | 15 October 2020

The Court of Appeal has overturned an earlier decision of the Grand Court, thereby allowing the enforcement of an International Chamber of Commerce arbitral award issued in favour of a Brazilian airline. The decision raises important and difficult issues relating to the enforcement of foreign arbitral awards which are the subject of robust challenge before the courts of supervisory jurisdiction.

Corporate Finance/M&A

Court of Appeal re-examines master-feeder redemption procedures
Cayman Islands | 26 August 2020

The Court of Appeal recently reiterated the importance of following the natural and ordinary meaning of a fund's articles in order to ensure that redemptions are effective. This is particularly important in the context of a master-feeder fund structure. Although the decision is consistent with longstanding authority, it does highlight the importance of ensuring that the redemption procedures set out in a master fund's articles are strictly adhered to as a matter of practice.

Insolvency & Restructuring

Snapshot: determining whether a petition debt is disputed on substantial grounds
Cayman Islands | 20 November 2020

It is trite law that where a petition debt is disputed in good faith and on substantial grounds, the Grant Court's ordinary practice is to dismiss or strike out the winding-up petition. However, this principle is more easily applied in theory than in practice, resulting in a remarkable amount of case law. That body of case law has been swelled in 2020 by a number of Grand Court decisions which provide further guidance as to whether a petition debt is to be considered genuinely disputed on substantial grounds.

Guide to restructuring and corporate recovery
Cayman Islands | 30 October 2020

This article answers FAQs on restructuring and corporate recovery options available in the Cayman Islands, with respect to domestic procedures, cross-border procedures, creditors, avoidance transactions, contributions to liquidation estates and officer liability.

Restructuring – current state of play
Cayman Islands | 04 September 2020

At the recent Chambers Economic Forum, the Cayman government announced its intention to bring in a much-anticipated new regime governing corporate restructuring by the end of 2020. Until then, with the COVID-19 pandemic pushing many groups into the zone of insolvency, a number of considerations remain relevant to structures involving a Cayman entity.

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

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

New York Supreme Court rules derivative claims under Cayman law must first go through Cayman courts
Cayman Islands | 26 August 2016

A recent decision by the Supreme Court of New York Appellate Division has affirmed that the law of the Cayman Islands applied on the question of the law applicable to derivative claims brought by a shareholder of a Cayman Islands company in the New York jurisdiction. Any shareholder of a Cayman Islands company that wishes to bring a derivative action must commence the action in the Cayman Islands.

China Shanshui: change of direction for company winding-up petitions
Cayman Islands | 08 January 2016

A widely discussed recent Cayman Grand Court decision declined to follow the precedent set in Re China Milk Products Group Ltd, instead striking out a winding-up petition filed by the directors of China Shanshui Cement Group Limited for lack of standing. The decision re-establishes the principles set out in the English case of Re Emmadart Ltd as good law in the Cayman Islands.

Litigation

Court of Appeal enforces foreign arbitral award in favour of Brazilian airline
Cayman Islands | 13 October 2020

The Court of Appeal has overturned an earlier decision of the Grand Court, thereby allowing the enforcement of an International Chamber of Commerce arbitral award issued in favour of a Brazilian airline. The decision raises important and difficult issues relating to the enforcement of foreign arbitral awards which are the subject of robust challenge before the courts of supervisory jurisdiction.

Cayman injunctions in aid of foreign proceedings
Cayman Islands | 29 September 2020

Where a potential judgment debtor in onshore proceedings threatens to dissipate its assets, the plaintiff may face a pyrrhic victory with no assets against which to enforce its judgment. Where the defendant is a Cayman company or has assets in the Cayman Islands, the Cayman court has statutory jurisdiction to grant a freezing injunction in aid of those foreign proceedings, which can extend to the worldwide assets of the defendant.

Court of Appeal re-examines master-feeder redemption procedures
Cayman Islands | 25 August 2020

The Court of Appeal recently reiterated the importance of following the natural and ordinary meaning of a fund's articles in order to ensure that redemptions are effective. This is particularly important in the context of a master-feeder fund structure. Although the decision is consistent with longstanding authority, it does highlight the importance of ensuring that the redemption procedures set out in a master fund's articles are strictly adhered to as a matter of practice.

Contingency fee agreement authorised for litigation in foreign jurisdiction
Cayman Islands | 25 November 2014

The Cayman Court has set out to clarify the circumstances in which it will sanction proposed litigation overseas funded by alternative funding agreements, including contingency fee ('no win, no fee') agreements. Although contingency fee agreements are unlawful in the Cayman Islands, the same restriction does not apply to litigation intended to be conducted in a jurisdiction where such agreements are permitted.

Litigants reminded of importance of appropriate security for costs
Cayman Islands | 18 November 2014

In Caribbean Islands Development Ltd v First Caribbean International Bank Ltd the court sent a strong reminder to litigants of the importance of providing security for costs in a form appropriate for enforcement by a Cayman resident defendant, and thereby highlighted the dangers of proposing alternative solutions without the prior approval of the court.

Private Client & Offshore Services

Snapshot: determining whether a petition debt is disputed on substantial grounds
Cayman Islands | 19 November 2020

It is trite law that where a petition debt is disputed in good faith and on substantial grounds, the Grant Court's ordinary practice is to dismiss or strike out the winding-up petition. However, this principle is more easily applied in theory than in practice, resulting in a remarkable amount of case law. That body of case law has been swelled in 2020 by a number of Grand Court decisions which provide further guidance as to whether a petition debt is to be considered genuinely disputed on substantial grounds.

Guide to restructuring and corporate recovery
Cayman Islands | 29 October 2020

This article answers FAQs on restructuring and corporate recovery options available in the Cayman Islands, with respect to domestic procedures, cross-border procedures, creditors, avoidance transactions, contributions to liquidation estates and officer liability.

Court of Appeal enforces foreign arbitral award in favour of Brazilian airline
Cayman Islands | 08 October 2020

The Court of Appeal has overturned an earlier decision of the Grand Court, thereby allowing the enforcement of an International Chamber of Commerce arbitral award issued in favour of a Brazilian airline. The decision raises important and difficult issues relating to the enforcement of foreign arbitral awards which are the subject of robust challenge before the courts of supervisory jurisdiction.

Cayman injunctions in aid of foreign proceedings
Cayman Islands | 24 September 2020

Where a potential judgment debtor in onshore proceedings threatens to dissipate its assets, the plaintiff may face a pyrrhic victory with no assets against which to enforce its judgment. Where the defendant is a Cayman company or has assets in the Cayman Islands, the Cayman court has statutory jurisdiction to grant a freezing injunction in aid of those foreign proceedings, which can extend to the worldwide assets of the defendant.

Restructuring – current state of play
Cayman Islands | 03 September 2020

At the recent Chambers Economic Forum, the Cayman government announced its intention to bring in a much-anticipated new regime governing corporate restructuring by the end of 2020. Until then, with the COVID-19 pandemic pushing many groups into the zone of insolvency, a number of considerations remain relevant to structures involving a Cayman entity.

Court of Appeal re-examines master-feeder redemption procedures
Cayman Islands | 20 August 2020

The Court of Appeal recently reiterated the importance of following the natural and ordinary meaning of a fund's articles in order to ensure that redemptions are effective. This is particularly important in the context of a master-feeder fund structure. Although the decision is consistent with longstanding authority, it does highlight the importance of ensuring that the redemption procedures set out in a master fund's articles are strictly adhered to as a matter of practice.

COVID-19 restructuring and corporate recovery measures
Cayman Islands | 28 May 2020

The government recently held a virtual meeting with the heads and delegates of financial services industry associations in Cayman to allow it to engage with them directly on various COVID-19-related business continuity plans relating to the financial services industry. It is hoped that any chosen actions will be taken swiftly, consistent with the government's stated desire of assisting users of the financial products that the jurisdiction offers.

Not in dispute – why Cayman leads in cross-border dispute resolution and how the sector is evolving
Cayman Islands | 28 March 2019

Insolvency and restructuring cases are perhaps the most common types of cross-border dispute heard by the Grand Court, but other examples include trust disputes, which can often involve high-net-worth families and trust assets spread across the globe, and the enforcement of foreign judgments and arbitral awards. High-profile examples of cross-border cooperation between the Grand Court and foreign courts include the Bank of Credit and Commerce International liquidation and the Ocean Rig restructuring.

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

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

New York Supreme Court rules derivative claims under Cayman law must first go through Cayman courts
Cayman Islands | 25 August 2016

A recent decision by the Supreme Court of New York Appellate Division has affirmed that the law of the Cayman Islands applied on the question of the law applicable to derivative claims brought by a shareholder of a Cayman Islands company in the New York jurisdiction. Any shareholder of a Cayman Islands company that wishes to bring a derivative action must commence the action in the Cayman Islands.

China Shanshui: change of direction for company winding-up petitions
Cayman Islands | 07 January 2016

A widely discussed recent Cayman Grand Court decision declined to follow the precedent set in Re China Milk Products Group Ltd, instead striking out a winding-up petition filed by the directors of China Shanshui Cement Group Limited for lack of standing. The decision re-establishes the principles set out in the English case of Re Emmadart Ltd as good law in the Cayman Islands.

Contingency fee agreement authorised for litigation in foreign jurisdiction
Cayman Islands | 20 November 2014

The Cayman Court has set out to clarify the circumstances in which it will sanction proposed litigation overseas funded by alternative funding agreements, including contingency fee ('no win, no fee') agreements. Although contingency fee agreements are unlawful in the Cayman Islands, the same restriction does not apply to litigation intended to be conducted in a jurisdiction where such agreements are permitted.

Litigants reminded of importance of appropriate security for costs
Cayman Islands | 13 November 2014

In Caribbean Islands Development Ltd v First Caribbean International Bank Ltd the court sent a strong reminder to litigants of the importance of providing security for costs in a form appropriate for enforcement by a Cayman resident defendant, and thereby highlighted the dangers of proposing alternative solutions without the prior approval of the court.