Episodes
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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.
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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.
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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.
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In this episode of our Take10 podcast, Asia Managing Partner Ian Mann interviews Victor Joffe QC about his extensive legal career including his aspirations as a law student, his role models, how he overcame challenges and lessons learned, as well as helpful advice to younger generations of legal practitioners.
Key Takeaways:
Victor was always interested in the law and originally planned to become a solicitor. When a tutor of his mentioned that being a barrister allowed for greater independence and the ability to “be your own boss,” Victor decided that a career path as a barrister was the right move for him.Victor’s focus on company law was inspired by Gower & Davies: Principles of Modern Company Law. The book propelled him deeper into company law, developing particular expertise in unfair prejudice claims. Victor has also written a book on company law called Minority Shareholders: Law, Practice and Procedure and briefly taught company law and tax at the London School of Economics.Victor’s mentors inspired him with their ability to clearly and logically express summaries of complex points and cases, as well as reinforcing the importance of being thoroughly prepared for court, being fearless in your clients' interests, to never give up even if the case doesn’t seem to be going your way, and to treat everyone with decency and respect.When first starting out, it’s normal to be afraid when appearing in front of the judiciary and dealing with difficult judges, but with time and experience, practitioners will overcome this. The fear should never force you to cower at the expense of the client. As a Silk, Victor would often visit Hong Kong for work. He loved the city and decided to move. The biggest difference is that he appears in court more often in Hong Kong than he did in the UK which has helped develop his practice significantly. Victor’s key piece of advice to his younger self, and indeed to young practitioners today, is to achieve a good work-life balance and to be prepared for the unexpected.
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In this episode of our Take10 podcast, Partner Andrew Thorp is joined by Partner Peter Ferrer, Co-head of our global Litigation, Insolvency and Restructuring team, and Counsel Olga Osadchaya, a member of our Litigation and Insolvency practice in the BVI.
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In this episode of our Take 10 podcast, BVI Head of Litigation, Insolvency and Restructuring Andrew Thorp is joined by partner Jonathan Addo to discuss the eagerly awaited Privy Council full board decision in Convoy Collateral Limited v Broad Idea International Limited which was handed down on 4 October 2021.
The Privy Council was asked to determine whether the Eastern Caribbean Court of Appeal was right in overturning the BVI Commercial Court’s 2010 Black Swan decision, where Justice Bannister held that he had power to grant a freezing order in support of foreign proceedings against a non cause of action defendant within the BVI Court’s jurisdiction. The 4-3 majority judgment given by Lord Leggatt confirms that Justice Bannister was correct and will now be the leading authority on interim injunctions.
Key takeaways
The majority judgment of the Board confirms that the wider dicta in The Siskina – that an injunction must be connected to the cause of action in substantive proceedings – is legally unsound. It puts to rest the undesirable impediment the case has had on the jurisprudence of interim injunction for the past 44 years.In doing so, it upholds the BVI Court’s Black Swan jurisdiction, confirming that such common law equitable power to grant interim or freezing injunctions, whether standalone or not, exists, despite legislative development.The majority judgment examines the purpose of a freezing injunction in the modern context, affirming it is to prevent the right of enforcement from being rendered ineffective by the dissipation of assets against which the judgment could otherwise be enforced, recognising the developments in international commerce since 1977.The decision safeguards the standalone freezing injunction as an important cross-border asset tracing tool.
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In this episode of our Take 10 podcast, Hong Kong partner Andrew Johnstone invites Peter Ferrer, our BVI-based co-head of the global Litigation, Insolvency and Restructuring team, and Hong Kong-based counsel Andrew Chin, to join him for a discussion on all things arbitration, particularly the use of arbitration in offshore disputes.
Key takeaways
While most offshore disputes are resolved within the British Virgin Islands and Cayman Islands courts, there is an increasing trend in onshore and offshore jurisdictions to resolve disputes by way of arbitration.The main reasons for choosing arbitration are increased confidentially and privacy, and the ability to choose your own arbitrator, ensuring the tribunal understands both parties’ cultural differences and represents their interests.When choosing the law and seat of the arbitration, parties will consider the following:enforcement – how easily can the award be transferred and recognised across borders?the procedural rules that apply – how easily can challenges be made and what options are available to appeal?the arbitration infrastructure – how modern is the legislation and what is the judiciary’s record of setting aside awards?The arbitration infrastructure in the BVI:The BVI developed a bespoke arbitration infrastructure, adopting the UNCITRAL Model Law on International Commercial Arbitration, while including certain provisions based on models from France, Sweden and England.Inspired by Maxwell Chambers in Singapore, the BVI established its own international arbitration centre (the BVI IAC), equipped with full administrative and concierge support, registrar and secretarial services, and state-of-the-art facilities including hearing and breakout rooms.Work permits are not required for arbitrators and counsel involved in arbitration in the BVI, unlike barristers attending court who need work permits.Asian-based parties make up a large number of those who use the offshore courts. In addition to arbitration in the BVI, the leading seats in Asia are Singapore, Hong Kong and South Korea. More recently, there has been an increased interest in using the China International Economic and Trade Arbitration Commission (CIETAC) as a top seat for arbitration.Hong Kong’s flexible arbitration regime allows Asian-based clients to arbitrate BVI or Cayman governed law disputes within Hong Kong, with BVI and Cayman law experts acting as the chair or co-counsel in the arbitration.
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Partner William Peake returns with another episode of Take 10, joined by Counsel Francesca Gibbons and Associate Joshua Shuardson-Hipkin to discuss BVI shareholder remedies and the role that our London based disputes team plays to ensure 24-hour client service.
Key Takeaways
Clients should always consider timely corporate advice in establishing a BVI company, which can help protect against future disputes.A first port of call is exploring if disputes can be resolved quickly through non-litigation routes, e.g share buy- out post independent share valuation.The BVI Courts are extremely experienced at dealing with heavy-weight international litigation, including unfair prejudice claims, breach of directors’ duties claims, fraud disputes and injunctions.There are many BVI common law concepts which onshore lawyers will be familiar with, but some critical differences, which is where we can add value.
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In this episode of our Take10 podcast, Asia Managing Partner Ian Mann is joined by Shanghai Managing Partner Vicky Lord to discuss the nuances and practicalities of offshore litigation from within the People’s Republic of China (PRC).
Key takeaways
Our lawyers in Shanghai provide advice to clients in the PRC on their offshore dispute matters. The PRC has a number of foreign law firms within its borders, all regulated by the Ministry of Justice of the People's Republic of China, providing foreign law advice to clients on the ground in the PRC. At Harneys, our lawyers advise on BVI, Cayman and Bermuda* law. Hong Kong and Singapore differ from Shanghai in that they have common law systems, as do the offshore jurisdictions. In contrast, Shanghai and the PRC is governed by a civil law system. Clients in the PRC use offshore vehicles for their international business transactions which qualify as foreign related transactions and are therefore capable of being governed by a foreign law.The PRC is a member of the Hague Service Convention, however it has objected to Article 10 of the Convention, and therefore service through postal channels is not permitted. Service can still occur within the PRC through the Central Chinese Authority, but certain criteria must be met. PRC law explicitly forbids foreign lawyers and other foreign personnel from carrying out judicial acts (such as taking depositions) in the territory of the PRC. As a result, witnesses travel to other jurisdictions outside of the PRC if they need to provide evidence in foreign litigation. In the PRC, affirmations can be declared before a notary public and can be affirmed directly in Chinese; however, if it is in English, some notaries may require a full translation of the affirmation; or indeed it may not be possible at all. Different regions in the PRC have different approaches.Unless an affirmation is required, for the purposes of commercial claims, witness statements are acceptable to support interim applications and are therefore an efficient and preferred method.*Bermuda law advice is provided through Zuill & Co., an independent Bermudian law firm in exclusive association with Harneys.
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In this episode of our Take10 podcast, Partner Peter Ferrer is joined by Counsel Kimberly Crabbe-Adams as she provides insights into her experience growing up in the British Virgin Islands, pursuing her career in law, and the importance of passion.
Key Takeaways:
Kimberly first joined Harneys as part of a work-study programme while she was in high school in the BVI. After furthering her education in Canada and the UK, she held pupillages across our Corporate and Commercial, Banking and Finance and Investment Funds and Regulatory departments.She permanently joined the firm’s Litigation, Restructuring and Insolvency practice in 2011 and is currently the President of the BVI Bar Association.Harneys seconded Kimberly to the Hong Kong office for two years; an experience that provided face-to-face client interactions which helped strengthen her relationships and understanding of the business.An active volunteer as an adjudicator for the National Secondary School Debates, Kimberly interacts with students often, providing mentorship and support throughout the BVI community.When deciding on a career path, Kimberly’s advice to students is that they should focus on passion. Their careers should involve things that they enjoy, are excited about and energised by.Subscribe to Harneys podcasts by clicking the icon in the bottom right corner of the podcast. Choose your preferred platform from the list presented and click subscribe or follow once logged in.
Visit harneys.com/Take10 to catch up on previous episodes.
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In this episode of our Take10 podcast, Partner William Peake is joined by our London Litigation team, Counsels Francesca Gibbons and Deirdre MacNamara, and Associate Joshua Shuardson-Hipkin, to discuss the inner workings of the Judicial Committee of the Privy Council.
Key Takeaways:
The history of the Privy Council can be traced back to the Norman times during the 11th Century where petitions were brought before the Monarch to be either granted or denied. Over time, it was decided that a group of Privy Counsellors be formed to review the petitions and provide advice to the Monarch about the best decision to be made. The group still exists today and remains a formal body of advisors to the Monarch. Today, the Privy Council remains the final appellate court for many overseas territories including the BVI, Cayman and Bermuda.Unlike other courts in England and Wales, all proceedings are recorded and can be watched online.Our London Litigation team has been involved in a number of heavy weight disputes before the Privy Council, appearing as either offshore lawyers or Privy Council Agents, and are uniquely placed due to their proximity to the Court, allowing them to take charge of filings.The team is also a member of the JCPC User Group Committee, attended by key Privy Council Agents. The group discusses procedural matters with the Court, putting forward suggestion for areas of improvement which are then considered by the Registrar and the Chairman. The Privy Council has adapted to the remote working world as a result of COVID-19, with virtual hearings, electronic filings and bundles, and the utilisation of encrypted messaging platforms.Subscribe to Harneys podcasts by clicking the icon in the bottom right corner of the podcast. Choose your preferred platform from the list presented and click subscribe or follow once logged in.
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In this episode of our Take 10 podcast, Litigation Partner William Peake joins Asia Managing Partner Ian Mann for an introduction and overview of The Offshore Litigation Blog, the platform that inspired the launch of our Take 10 podcast.
Key takeaways
The blog establishes a sense of community within the global litigation team at Harneys by providing a collaborative platform for our litigation lawyers of all levels to showcase their expertise and knowledge to a wide audience around the worldOur contributors are able to analyse complex cases and legislation and translate that into easy to read, digestible snippets of content that our audience, many of which are not lawyers, can identify with and understand Content on the blog is often the first to market for some of the largest and most ground breaking offshore cases, many of which become re-published by leading legal publicationsThe blog often highlights offshore and onshore experts through our QC Corner segment as well as the Take 10 podcast with guest speakers and authors, creating somewhat of a “think tank” where we share ideas about the trends and insights we see in the industryIan and William refer to Mr Edmund King QC during this podcast. This podcast was recorded prior to the very sad passing of Mr King over the Christmas period. Harneys was deeply saddened by this news and sends sincerest condolences to his family and friends. May he Rest in Peace. A link to his excellent article referenced in this podcast can be found here.
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On Season 3 of Take 10, we’re unravelling the complexities of the offshore litigation world. This season is packed with case law analysis, jurisdiction updates, as well as interviews with guest speakers and top legal experts who are at the forefront of legal developments in the offshore industry. Be sure to tune in each month for new episodes.
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In this episode of our Take10 podcast, guest speaker Victor Joffe QC of Temple Chambers joins Ian Mann to discuss Chu v Lau [2020] UKPC 24, a case that considers the test for winding up a company on the just and equitable ground, with particular reference to deadlock.
Key takeaways
Chu v Lau raises a number of interesting points about winding up on the just and equitable ground. In order to wind up a company on the just and equitable ground, certain conditions must be met, one of which is deadlock. There are two types of deadlock:Management (or functional) deadlock: Where two shareholders who are directors of a joint venture fall out, and as a result, are unable to agree on company management decisions, preventing the company from operating successfully. This type of deadlock will cause the court to wind up the company regardless of whether the individuals are in a quasi-partnership.Quasi-partnership deadlock: Where there is a complete failure of mutual trust and confidence. In this scenario, a winding up may be justified due to the failure of mutual trust and confidence, even though the underlying company continues to operate successfully and generate profits. There was also a debate about whether or not the behaviour complained of should be considered at the date of filing or at the date of the hearing. Section 162(1)(b) of the BVI Insolvency Act is in the present tense and therefore the court should consider whether there is deadlock at the time of the hearing, rather than at the date of the filing. When dealing with a quasi-partnership, it is the relationship between the quasi-partners that reveals the extent to which the necessary basis of trust and confidence has evaporated. Therefore, no aspect of a business relationship is irrelevant. In other words, all grievances within the relationship are relevant to the breakdown in trust and confidence. As a result, OSL was considered to be a quasi-partnership company, as its management included the management of the affairs of its wholly owned subsidiary, PBM, and in turn, Beibu Gulf. Essentially, the deadlock that occurred within Beibu Gulf could be relied upon to wind up OSL. Unfair prejudice vs just and equitable groundsOne could prove the breakdown of mutual trust and confidence without proving unfair prejudice in the management of the company. Unfair prejudice requires “the affairs of the company” to be unfairly prejudicial to its members, which is potentially more limited. When applying for a winding up, more behaviour can be taken into account when applying on just and equitable grounds in a quasi-partnership company than winding up on the grounds of unfair prejudice, ie more than just “the affairs of the company”.Alternative remediesIn the BVI, on a just and equitable winding up, a buy-out remedy cannot be obtained. In the Cayman Islands however, a buy-out remedy is possible. Had an unfair prejudice claim been filed instead of a just and equitable winding up, a buy-out remedy could have been obtained.Read more about Chu v Lau in this blog post.
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In this episode of our Take10 podcast, Ian Mann is joined by guest speaker Victor Joffe QC of Temple Chambers to discuss the UK Supreme Court case of Sevilleja v Marex Financial Ltd [2020] UKSC 31, a case that looked at whether the rule against reflective loss prevented creditors of a company from claiming directly against a third party for asset-stripping the company.
Key Takeaways:
Sevilleja v Marex – The facts:
Mr Sevilleja controlled two BVI companies which were sued by Marex Financial Ltd. In the Court of Appeal, Marex was successful in obtaining a judgment of over US$5 million and costs. A copy of the draft judgment was provided to both parties, prior to the final judgment due to be handed down a few days later. During those days, Mr Sevilleja caused his BVI companies to transfer over US$9.5 million out of their accounts and subsequently put the companies into liquidation, making it impossible for Marex to receive payment on the judgment debt.As a result, Marex brought claims against Mr Sevilleja, seeking damages for violating Marex’s rights in avoiding the judgment and other intentional economic torts.Mr Sevilleja’s defence stated that Marex’s claims were barred by the principle of reflective loss.Reflective loss:
The reflective loss principle states that if a company suffers a loss, only the company can sue in respect of that loss. The shareholders cannot sue in respect of the loss because the loss suffered is not a personal loss, but a reflection of the loss suffered by the company.In Prudential Assurance Co Ltd v Newman Industries Ltd (No 2) [1982] Ch 204, the Court of Appeal held that reflective loss applied to claims brought by shareholders in respect of diminution in the value of their shares, and diminution in the flow of distributions, caused by a wrongdoer who had acted in breach of duty both to the company and to the shareholders.In a number of subsequent cases, Johnson v Gore Wood & Co [2000] UKHL 65 has been relied upon to justify an expansion of the reflective loss principle, particularly due to Lord Millet’s speech. For example, the rule was expanded to apply to shareholders who are creditors (as seen in Gardner v Parker [2004] 2 BCLC 554) and then to apply to creditors who are not shareholders, as seen in the Court of Appeal in Sevilleja v Marex.Ultimately, the Supreme Court in Sevilleja v Marex pairs back the reflective loss rule to its original and limited scope as decided originally in the decision of Prudential - making it clear that reflective loss only applies to diminution in shareholdings and diminution in the flow of distributions. It does not apply any further and there are no exceptions to the rule. It does not prevent creditors of a company from claiming directly against a third party for asset-stripping the company.
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In this episode of our Take10 podcast, Paula Kay joins Ian Mann to discuss privatisation, the process by which a company transfers from public to private ownership and control.
Key Takeaways
Why privatise?
Given the current economic and geopolitical climate, publicly listed companies are facing great pressure and are looking for ways to either exit from their current stock exchange and relist elsewhere, or to exit the stock exchanges completely.Increased reporting requirements as a result of the US-China trade war has also played a role in many organisations’ desire to privatise.Options for privatisation for a Cayman Islands company
Standard merger process in which a public company merges with a private company in order to come off the stock exchange. Privatisation via a scheme of arrangement has a similar time frame to a standard merger, but does not require a fair value pay-out to dissenting shareholders. However, a majority in number and 75 per cent present and voting is needed, which may be challenging to obtain.Mergers in accordance with Part XVI s233 only require a special resolution (usually 66 per cent), which may be easier to obtain. However, dissenting shareholders have the right under s288 to seek the Courts assistance to determine a fair value. Should the Court decide that the value of the shares at the time of the merger was not fair, the dissenters are entitled to an uplift. Part XVI s233(7) is an exception to the standard merger process, referred to as a Short Form Merger, which is a combination of a Squeeze Out (where 90 per cent of the shares are acquired) and a merger to follow. As 90 per cent of the shares are owned, there is no requirement for a meeting of the members as there is no need for a special resolution to be passed, resulting in a compulsory buyout of the remaining shares. In this event, dissenting shareholders do not have the opportunity to provide notice or to seek the Courts assistance to determine fair value. Regardless of the way in which a company privatises, financial advice from an independent third party and an independent special committee to assess the merits of the merger are essential to ensure that the deal is the correct price for the shareholders.
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In this episode of our Take 10 podcast, Andrew Johnstone and Ian Mann discuss the decision in CEFC Shanghai: the first PRC office holder to be recognised under the common law in Hong Kong.
Key Takeaways:
CEFC Shanghai
CEFC Shanghai was a PRC company in Administration. The Administrators sought common law recognition in Hong Kong in order to stop a garnishee order nisi from being made final.The House of Lords decision of Galbraith v Grimshaw [1910] AC 508 not followed, but obiter dicta in Privy Council decision of Grupo Torras SA v Al-Sabah [2014] 2 CLC 636 followed.The decision in CEFC Shanghai was consistent with established principles of common law recognition.Cross border recognition: BVI vs Cayman Islands
In the BVI, Part XIX of the BVI Insolvency Act permits orders in aid of foreign insolvency proceedings at the request of a foreign liquidator, but only to representatives appointed in 9 specific jurisdictions, of which the PRC is not included.Could the common law power of recognition be relied upon by PRC Administrators instead? The answer is: “maybe”, but the BVI Court of Appeal will have to clarify some conflicting first instance decisions.The Cayman Islands does have a statutory provision for recognition of foreign companies under Part XVII of the Cayman Islands Companies Law.
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In this episode of our Take 10 podcast, Julie Engwirda and Ian Mann discuss directors’ duties and obligations where a company is experiencing financial pressure.
Key Takeaways:
2020 has seen the global economy affected in unprecedented ways. With major loss of revenue, global stock market crashes, and millions of jobs affected, directors across all sectors are having to reassess their businesses and plan for an uncertain future. Directors will need to adapt to the changing landscape to ensure survival of their businesses, with an emphasis on maximising cash flow whilst minimising expenses. Having cash flow issues does not necessarily mean a company is insolvent. Many common law jurisdictions give statutory guidance to directors when considering solvency issues. When directors know or ought to know that the company is, or is likely, to become insolvent, they owe duties to creditors (instead of shareholders). Risks: BVI: insolvent trading. Cayman Islands: fraudulent trading.
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In this episode of our Take10 podcast, Ian Mann and Dayton Riddle discuss whether a board of directors of a Cayman Islands company has the right to petition to wind up the company without shareholder approval, for restructuring or insolvency purposes.
We hope you have enjoyed our Take 10 series this year and we look forward to providing you with more insightful podcasts in the new year.
Stayed tuned and thanks for listening!
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In this episode of our Take 10 podcast, Ian Mann and Julie Engwirda discuss the shareholder remedy of derivative actions, particularly multiple derivative actions in the British Virgin Islands.
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