A recent BVI Court of Appeal judgment was issued on a point rarely taken: is leave required to file a counter notice to an existing appeal? The full court found that once an appeal has been commenced with leave, the court's jurisdiction is engaged and the party wishing to cross-appeal may do so by counter notice without bringing a separate leave application. The court described a counter notice as being by its nature "parasitical on a pending appeal".
The Grand Court of the Cayman Islands recently set aside service of proceedings against a foreign defendant, concluding that the plaintiff had abused the court process in pursuing the proceedings and failed to establish that the court should exercise its jurisdiction over the defendant. The court held that the defendant's immunity as the employee of a New Zealand crown entity was an "unplayable delivery" for the plaintiff and weighed heavily against the exercise of the court's exorbitant jurisdiction.
It has long been argued that no sui generis category of litigants is exempt from the general rules of discovery, which aim to protect the integrity of the litigation process. The Cayman Islands Court of Appeal recently released its decision in the appeal of a directions order, in which the contested issue was whether dissenting shareholders in appraisal actions under Section 238 of the Companies Law are required to give discovery.
A recent Grand Court of the Cayman Islands decision has confirmed that if a party pursues foreign proceedings in breach of a Cayman Islands exclusive jurisdiction (or similar) clause in a contract, that party faces the prospect of having to pay both the Cayman and foreign litigation costs of the counterparty on the indemnity basis.
In a partial ruling in Xiaodu Life Technology, the Cayman Islands Grand Court ruled on the scope of the company's discovery and the use of keyword searches; whether the number of information requests should be limited; and the number and conduct of management meetings, including whether they should be open or without prejudice.
The Commercial Division of the BVI Court has granted a strike out application on the grounds that the Aldi Stores Ltd v WSP Group plc principles – whereby a party which intends to bring a subsequent action against existing parties must raise the issue with the court – apply in the British Virgin Islands. It held that while the principles may not have been promulgated in this jurisdiction, litigants must put their cards on the table at an early stage or risk being held to have abused the court's process.
The Cayman Islands Court of Appeal has held that a liquidator cannot use his or her statutory power pursuant to Section 112(2) of the Companies Law to rectify the register of members where the effect would be to override investors' proprietary rights. It held that the section does not aim to provide for substitution of incorrect net asset value if, despite its incorrectness, it has been calculated in accordance with a member's contractual rights.
The Foundation Companies Law 2017, which recently came into force, approaches the creation of a foundation company in such a way that it may consequently be established for any lawful purpose. The foundation company shares many of its features with other types of Cayman company and fits seamlessly into the Cayman Islands' legal regime. It will therefore have the benefit of a considerable body of case law on companies.
As Cayman Islands entities are not directly subject to the so-called 'automatic exchange of information' agreements, the government has introduced legislation to implement these under the Tax Information Authority Law. Guidance notes have also been issued, providing details of the notification, reporting and ongoing obligations that apply, as well as a useful reminder of the differences between the Foreign Account Tax Compliance Act and the Common Reporting Standard.
The Tax Information Authority (TIA) recently issued further updates on the compliance obligations of Cayman financial institutions. A number of key dates and developments have changed since then, including with regard to TIA registration, the 2017 reportable jurisdictions, liquidation reporting obligations and the phasing out of the UK Crown Dependencies and Overseas Territories International Tax Compliance Regulations.