Offshore Litigation Blog

In a recent decision involving the China Evergrande Group, the Hong Kong Court of First Instance reaffirmed the policing provisions of disclosure orders under Mareva/freezing injunctions.

In a recent landmark decision, the Singapore High Court in Re Taylor, Joshua James and another (Official Receiver, non-party) addressed the treatment of unclaimed cryptocurrencies during the liquidation of Eqonex Capital Pte Ltd, a digital asset exchange operator.

The BVI has robust corporate insolvency legislation, fostering recoveries for creditors in the event of a liquidation. This article examines two areas where the BVI’s legislation, as interpreted by its Courts, is particularly developed: unfair preferences and challenges to the decisions of liquidators, as well as other office-holders. The strength of the BVI’s corporate insolvency legislation provides a reason for companies to incorporate in the territory.

The UK Supreme Court has recently provided important clarification as to the breadth of Section 213 of the Insolvency Act in Bilta (UK) Ltd (In Liquidation) v Tradition Financial Services Ltd (Bilta), holding that it is not intended to apply only to persons exercising management or control of the company’s business, but extends also to third party outsiders who have assisted or knowingly become parties to the carrying on of fraudulent business.

In the recent decision of In the Matter of Position Mobile Ltd SEZC, the Cayman Islands Grand Court has thoroughly reviewed the legal test as to whether the documents of a subsidiary are within the “power” of its parent company in the context of a specific discovery application in winding-up proceedings. The decision also serves as a helpful reminder on the importance of formulating specific discovery applications with precision and full particulars.

In a recent BVI case, the Commercial Court navigated various issues arising out of a winding up application brought by a creditor against a struck off and dissolved BVI company, based on an unregistered foreign judgment.

The English Court of Appeal’s decision in Servis-Terminal LLC v Drelle concerns the issue of whether unregistered or non-domesticated foreign judgments or arbitration awards can be used as a basis for insolvency proceedings. The English Court of Appeal ruled that such judgments cannot serve as a basis for bankruptcy petitions in England.

The Cayman Islands Grand Court recently considered the circumstances necessitating a second adjournment of a trial where a principal witness was unable to travel outside of the PRC to attend trial for cross-examination. In In The Matter of Shiliu Investment Group Limited, the Court re-examined the principles of fairness in a somewhat novel situation where the only two witnesses at trial were unable to travel to the Cayman Islands to give evidence.

The Grand Court of the Cayman Islands follows the Privy Council decision in Sian v Halimeda and confirms that an applicant for an injunction restraining the presentation of a winding up petition must show that the debt is disputed on genuine and substantial grounds, even where there is an arbitration agreement.

In the recent decision involving Trillion Glory Limited and R&F Properties (HK) Company Limited, Madam Justice Linda Chan of the High Court of Hong Kong dismissed winding-up petitions filed by a secured creditor, on the basis that the secured creditor lacked a real interest in the proposed liquidations and there was no benefit in issuing a winding-up order due to the absence of assets for unsecured creditors.

The High Court in England has held that a defendant company may rely on public law defences in opposition to a petition seeking the winding up of the company on public interest grounds: The Commissioners for His Majesty’s Revenue and Customs v Purity Limited.

The recent Cayman Islands case of In the Matter of TFKT True Holdings provides valuable insight to the factors considered by the Grand Court when determining whether to grant a stay of a winding up petition pending the determination of parallel proceedings in Hong Kong.