Harneys blogged on 20 February 2019 regarding the important decision of the BVI Commercial Court in Commercial Bank of Dubai v Abdalla Juma Majid Al-Sari & Others whereby Justice Adderley confirmed that the BVI Courts did indeed have jurisdiction to grant charging orders.
Justice Adderley has now handed down his full judgment in the Commercial Bank of Dubai case, which can be found here.
Justice Adderley largely agreed with and followed the submissions made by Harneys on behalf of the Bank in finding that there had been a statutory basis for the granting of charging orders in England prior to 1940, which meant that such jurisdiction vested in the BVI Courts by virtue of section 7 of the Eastern Caribbean Supreme Court Act 1969.
The judgment reaffirms that Justice Adderley’s decision in Stichting Nems v Gitlin was made per incuriam insofar as he concluded in that case that the BVI courts did not have jurisdiction to grant charging orders. Justice Adderley also helpfully restated the principles that guide the court in exercising its discretion as to whether a provisional charging order should be made final.
Charging orders are a critically important tool, particularly when enforcing foreign judgments, as they allow creditors to take a proprietary interest over assets owned by a debtor and ultimately can facilitate the sale of such assets in order to allow the creditor to realise their debt. The decision in Commercial Bank of Dubai should therefore be welcomed, as it avoids the need for the legislature to step in and fill what would otherwise have been a significant lacuna in BVI law.