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The inconvenient truth of multi-jurisdictional litigation

In Wilton Trustees (IOM) Limited v AFS Trustee Limited, the BVI Commercial Court confirmed that a defendant seeking a stay of proceedings on the ground of forum non conveniens must identify the single most appropriate forum in order to obtain relief — it is not sufficient to point to a number of other available jurisdictions as being more appropriate than the BVI.

The underlying dispute in Wilton Trustees concerns the Erica Settlement, a Lichtenstein law governed trust. The claimants allege, among other things, a conspiracy amongst several of the defendants with the aim of misappropriating the trust assets. The trust assets include shares in four companies, which are also defendants to the proceedings. Three of the companies are BVI companies that were served with the proceedings as of right. One of the BVI companies owns, through various BVI and Liberian subsidiaries, several residential properties in England valued at approximately US$81 million.

The principles to be applied in determining whether to grant a stay were set out by Lord Goff in Spiliada Maritime Corp v Cansulex Ltd:

The basic principle is that a stay will only be granted on the ground of forum non conveniens where the court is satisfied that there is some other available forum, having competent jurisdiction, which is the appropriate forum for the trial of the action, i.e. in which the case may be tried more suitably for the interests of all the parties and the ends of justice.

The applicants, being eight of the defendants including the former trustee, argued that the reference to “the appropriate forum” in Lord Goff’s classic formulation of the test should be interpreted to mean, in a multi-jurisdictional case, “any other appropriate forum”. Justice Green QC disagreed.

In his judgment, Justice Green QC referred to Lord Goff’s dicta in Spiliada regarding multi-jurisdictional cases. Lord Goff suggested that the Court should refuse a stay in proceedings founded as of right where there is no other particular forum that can be described as the natural forum (i.e. where there are pointers to a number of other appropriate forums). His Lordship also referred to decisions of the BVI Court of Appeal, including Justice Gordon’s judgment in IPOC International Growth Fund Limited that appeared to approve Lord Goff’s dicta, and noted that he was bound by those decisions.

Justice Green QC proceeded to consider the relevant factors for determining the appropriate forum (e.g. location of witnesses and the place of commission of the alleged wrongs). His Lordship ultimately concluded that none of the jurisdictions identified by the applications was clearly the appropriate forum for the dispute. As such, the proceedings, which had been started as of right, would continue in the BVI.

The inconvenient truth of multi-jurisdictional litigation

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