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The Offshore Litigator's Perspective - Q1 2022
Welcome to our quarterly litigation round up, which brings you Mourant's perspective on legal developments that we see in our work advising on many of the most challenging and complex cases in the offshore courts.
It's been another busy quarter in the offshore litigation world.
For the first time in Channel Islands jurisprudence, the Royal Court of Jersey has considered the role of a protector whose consent is required by a trust instrument for a transaction and the documents and information the protector is entitled to be provided with by the trustee. Because there is limited judicial authority as to the nature and scope of protectors' powers in the Channel Islands and beyond, the decision is important for the wider international trust community.
The BVI Court has considered an application made by Australian administrators for orders for recognition and assistance under Part XIX of the Insolvency Act, 2003. Our update on that decision analyses the policy factors at play when the Court will determine whether or not to grant such orders. Accordingly, it should be of interest to insolvency specialists everywhere.
As part of the modernisation of its laws, the Cayman Islands will abolish the 'headcount test' for members' schemes of arrangement. This is a welcome development that should bring more certainty and clarity to Cayman Islands restructurings.
Find out about these important issues and more in the latest edition of the Offshore Litigator's Perspective.
Explore our latest issue
BVI
- The BVI Court has refused to grant an application made by Australian administrators for orders for recognition and assistance under Part XIX of the Insolvency Act, 2003 where the effect of doing so would have been inconsistent with contractual ownership rights governed by British Virgin Islands and English law. Find out why here.
- What are the main duties of a director of a BVI company that arise under common law, the BVI Business Companies Act 2004 and the company's memorandum and articles of association? Find out what practical steps a director can take to guard against personal liability here.
- The Eastern Caribbean Court of Appeal in Grenada Rice Mills Ltd v Grenada Marketing and National Importing Board considered the application of the 'without prejudice' rule to a letter not marked "without prejudice". Read here.
Cayman
- The Companies (Amendment) Act 2021 of the Cayman Islands (Amendment Act), which was gazetted on 16 December 2021, will abolish the current 'headcount test' which a Cayman Islands members' scheme of arrangement has to satisfy under section 86 of the Companies Act (2021 Revision) (Companies Ac. Read the implications of this here.
- The Grand Court of the Cayman Islands has considered the approach that the Court will take when reviewing official liquidators' fees. Read more here.
- In the October 2021 edition of IBA Insolvency and Restructuring International, Peter Hayden and Jonathan Moffatt explain recent decisions in the UK and the Cayman Islands on the narrowing of the rule in Prudential and its implications for shareholders and creditors considering litigation. Read here.
Guernsey
- We recently wrote about the key changes that the new Financial Services Business (Enforcement Powers) (Bailiwick of Guernsey) Law, 2020 (the New Enforcement Law) made to Guernsey's enforcement regime (here). In this Update, we focus on the changes to the enforcement sanctions
- The FIU has just released guidance on the consent regime. That guidance highlights the FIU's view that the consent will only provide a defence if the Suspicious Activity Report (SAR) contains sufficient information to demonstrate why the suspicion has been raised, or to enable the FIU to fully understand the purpose and intended nature of the business relationship or occasional transaction. This is a notable development for everyone doing business in Guernsey. Read more here.
- In February 2022 Guernsey's Court of Appeal law was updated. We summarise the main changes made to the civil regime here.
Jersey
- For the first time in the Channel Island jurisprudence, the Courts have considered the role of a protector whose consent is required by a trust instrument for a transaction and the documents and information the protector is entitled to be provided with by the trustee. Read here.
- The narrow scope of the Court's jurisdiction when being asked to bless momentous decisions of trustees means that the occasions where the courts refuse such blessings are usually quite limited. Find out what this really means here.
- It's official – equitable set-off now forms part of Jersey law. We examine the Royal Court's decision in Monteagle International Limited -v- Grocery Market Research Limited [2021] JRC 260 here.
Our blog, The Offshore Litigator's Perspective, is where you'll find our point of view on significant cases in the courts and key legal developments – putting relevant, decisive and pithy news at your fingertips.
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About Mourant
Mourant is a law firm-led, professional services business with over 60 years' experience in the financial services sector. We advise on the laws of the British Virgin Islands, the Cayman Islands, Guernsey, Jersey and Luxembourg and provide specialist entity management, governance, regulatory and consulting services.
