In this episode of our Take 10 podcast, Asia Managing Partner Ian Mann and Counsel Andrew Chin talk about how the legislature and judiciary of the British Virgin Islands (BVI) and the Cayman Islands are constructing a favourable landscape for the application of interim measures in aid of international arbitration, no matter where those arbitrations are seated.

Key takeaways:

• The BVI and Cayman Islands have established themselves as one of the key commercial jurisdictions in favour of arbitration by integrating the UNCITRAL Model Law on International Commercial Arbitration into their legislative framework and adopting a pro-enforcement judicial attitude to the enforcement of arbitral awards.
• The most common type of interim measures taken in support of arbitration in the BVI and the Cayman Islands are Norwich Pharmacal applications to find out the identity and nature of the wrongdoers and applications for a freezing order to restrain the unlawful dissipation of assets.
• Regulatory arbitrage is more prevalent in international arbitration due to its cross border nature. For example, if one had delayed in seeking a freezing order or could not prove a dissipation of assets, the Hong Kong courts may deny relief. However, this is not a requirement in the PRC where a freezing injunction could be obtained without fulfilling those criteria.

In this episode of our Take 10 podcast, Asia Managing Partner Ian Mann and Partner Peter Ferrer discuss the case of Les Ambassadeurs Club Ltd v Yu.

Key takeaways:

• Les Ambassadeurs Club Ltd vs Yu is an English court of appeal case involving the test for a freezing injunction.
• This is the second case Les Ambassadeurs Club has had to file against a customer.
• The case concerned what is meant by “real risk of dissipation of assets”. The decision made it clear that it was not helpful to apply any gloss to the test and that a probability test ought not to be applied.
• Every element within the test needs to be analysed thoroughly to ensure that relief is handed out where appropriate and that it is not overly used.

In this episode of our Take 10 podcast, Asia Managing Partner Ian Mann and Partner William Peake discuss the case involving Global Fidelity Bank and their involuntary liquidation.

Key takeaways:

• Cayman Court appointed liquidators are officers of the Court; they must be professional insolvency practitioners; and they must act independently in the best interests of those with the economic interest in the liquidation (being the shareholders in a solvent liquidation and the creditors in an insolvent liquidation).
• The importance of the office holders entering into regular clear and transparent stakeholder communications.
• The identity of the practitioners being appointed is usually uncontroversial; most of the instances where a challenge is brought concern allegations of actual lack of independence. However apparent lack of independence is just as important. The Cayman Court is vigilant to ensure not only actual independence, but also the appearance of independence; not least because of the need to maintain confidence in those whom the Court appoints.
• Where a significant stakeholder objects to the appointment of proposed liquidators, the Court will give considerable weight to its views, if rational, held in good faith and on reasonable grounds; but no stakeholder can dictate who the Court should appoint.
• Where an objection is based on a prior involvement or relationship with the company in liquidation, the prior relationship or involvement may be an advantage in some cases, in terms of saving costs and time; in others, it may be a disqualification.
• In Re Global Fidelity Bank Ltd, in which Justice Doyle considers previous Cayman, English and Isle of Man decisions, and adopts the three stage test formulated in the 2013 Cayman case of Re Hadar Fund Ltd: This is that the Court must: (i) Identify the facts of the prior relationship or involvement; (ii) determine whether its existence is capable of impairing the appearance of independence and if so; and (iii) Determine if it is sufficiently material to the liquidation that a fair minded stakeholder would reasonably object to the appointment.
• In Re Global Fidelity Bank, the very limited prior involvement of the joint voluntary liquidators of the bank was held not to be a bar to their appointment by the Court (on which they took a neutral stance) as official liquidators under the Court ordered supervision of the voluntary liquidation (which was ordered on their petition) as neither stage (ii) or (iii) was satisfied.