Titan Europe 2006-3 plc v. Colliers International UK (in liquidation)

 

A recent decision of the English High Court shows an increasing judicial reluctance to allow parties to avoid liability for negligence simply because the complexity of the structure used by the owners to hold the assets means that it is difficult to identify who can bring a claim. Here we look at how the court addressed the issue of how a non-recourse Special Purpose Vehicle (‘SPV’) could bring a claim when it has not suffered any loss.

Introduction

On 16 January 2015 the Cayman Islands Government brought into force Part 4A of the Insurance Law, 2010 and passed the Insurance (Portfolio Insurance Companies) Regulations, 2015, thereby allowing insurers formed as segregated portfolio companies (“SPCs”) to enjoy the same benefits as incorporated cell companies in other jurisdictions.  Cayman’s form of incorporated cell company (“ICC”) legislation is thought to be more robust than other jurisdictions offering ICCs because the model operates squarely within fundamental and well-understood principles of corporate law.

Avonwick Holdings Ltd v Webinvest Ltd and another [2014]UK Court of Appeal Unreported

 

Where parties have a genuine dispute which they are genuinely attempting to settle through written or oral communications they can head a document or begin negotiations with the term ‘without prejudice’. That indicates that the content of the document or negotiation is protected from production in court or disclosure to other parties to the dispute. In certain circumstances the protection can apply where the term is not expressly used, but simply putting ‘without prejudice’ at the top of written communications or documents during negotiations will not of itself protect the document from production. This was confirmed by Avonwick Holdings Ltd v Webinvest Ltd and another [2014] (‘Avonwick’), a decision of the English court of appeal but which would be considered persuasive authority in the Cayman Islands (‘Cayman’) Grand Court.

The Grand Court (Amendment) Bill, 2014

 

On 20 October 2014  the Cayman Islands (‘Cayman’) legislature brought into force a Law which gives the Grand Court the power to appoint a receiver or to grant other interim relief (including an interlocutory injunction) in relation to proceedings outside Cayman. The Grand Court now has the power to grant an injunction to freeze assets held in Cayman, even where the substantive proceedings are not based in Cayman.

 

In the matter of the representation of A Limited as trustee of the B Trust, and In the matter of the Trusts (Jersey) Law 1984 as amended [2014] JRC 032

 

A recent Jersey Royal Court decision provides a timely reminder of when it is appropriate for trustees:

(a) to ask for the court’s assistance; and

(b) for the court to give that assistance; and

(c)  when the court’s assistance can help a company owned and run by a trust.

 Although the decision was taken in the Jersey Royal Court (‘the Court’), the principles could be used to form the basis of a similar application in the Grand Court of the Cayman Islands.

Reasons tech companies should consider the Cayman Islands new Special Economic Zone

The new Cayman Enterprise City ('CEC'), based in a new Special Economic Zone ('SEZ'), has been designed to attract knowledge-based industries to the Cayman Islands ('Cayman'). There are potential benefits for multinationals or start-ups to take advantage of the extra concessions being made by the Cayman Government, provided they operate in the fields of internet or information technology; media, marketing and film; biotech and life sciences; commodities and derivatives, education and training; or academia.

If your organization has taken the decision to buy a company registered in the Cayman Islands (‘Cayman’) here is a brief introduction to the overall process and some of the  issues you might like to consider. Buying a Cayman company may form part of a specific investment strategy or a follow a more general strategic review of the global tax advantages which such a move would bring to your organization, but there are potential pitfalls – and you will need specific legal and tax advice before you act.

Martrade Shipping & Transport GmbH v United Enterprises Corporation [2014] EWHC 1884 (Comm) ; Late Payment of Commercial Debts (Interest) Act 1998

The English High Court has looked at the extent to which the United Kingdom's Late Payment of Commercial Debts (Interest) Act 1998 ('the Act') can apply to international contracts which have express provisions that the contract to be governed by English law, and that any disputes be resolved by a London arbitration. The Act can imply a term for a punitive rate of interest of 8% above base rate but there are exceptions to when it can be applied. Here we look at the Act, the exclusions, and the Court's guidance on when the Act can apply to an international contract.

Tchenguiz v Director of the Serious Fraud Office (Non-Party Disclosure) aka Rawlinson and Hunter Trustees SA v Akers UKCA (Civil Division) 20 February 2014 [2014] EWCA Civ 136
The UK Court of Appeal ('UKCA') recently confirmed a decision that liquidators had to disclose reports that they had commissioned at a time when they were not actively involved in  a lawsuit. The liquidators had not established that the reports were protected from disclosure by 'litigation privilege' ('LP') because the dominant purpose behind their creation was not for, or to obtain legal advice on, actual or anticipated litigation. Now would be a good time for liquidators to take a close look at:

The Cayman Islands Exempted Limited Partnership Law, 2014 came into force last week following its gazettal on Wednesday, 2 July 2014.  The new law (the 'Law') is the result of years of consultation with the financial services industry and is designed to make the already popular Exempted Limited Partnership ('ELP') investment vehicle more flexible, easier to establish and to run.

IN THE MATTER OF ICP STRATEGIC CREDIT INCOME FUND LTD AND IN THE MATTER OF ICP STRATEGIC CREDIT INCOME MASTER FUND LTD. CAUSE NO. FSD 82 OF 2010 (AJJ) CAUSE NO. FSD 269 OF 2010 (AJJ) ('Re: ICP')
 
The Grand Court of the Cayman Islands (the 'Court') has sanctioned a contingency fee agreement for a New York law firm ('RCT') to bring proceedings in the US courts on behalf of the Official Liquidators ('Liquidators') of two Cayman Islands ('Cayman') domiciled Funds. This type of agreement is contrary to Cayman public policy and would normally be void and unenforceable for litigation conducted in Cayman. The Judge gave written reasons to guide insolvency practitioners on the criteria for such an agreement to be sanctioned by the Court.

West v Ian Finlay and Associates [2014] EWCA Civ 316

A recent UK Court of Appeal ('UKCA') decision has held that Net Contribution Clause ('NCC') "was a valid and binding clause that ought to have been given effect". Until this decision it was not clear in English law whether having an NCC in a contract with a third party would limit your liability in circumstances where you were jointly and severally liable with other parties. Here we look at the principle of joint and several liability, what NCCs are designed to achieve and how best to incorporate them into your contracts.

The Directors Registration and Licensing Law, 2014
The Directors Registration and Licensing Law, 2014 (Commencement) Order, 2014
The Directors Registration and Licensing (Registration and Licensing) Regulations 2014

 
The Cayman Islands Directors Registration and Licensing Law, 2014 ('the Law') came into force on 4th June 2014, which means Directors now have three months to submit their applications to register with or obtain a licence from the Cayman Islands Monetary Authority ('CIMA').  As per the law, corporate directors have six months to apply for a license.

The Directors Registration and Licensing Law 2014

 

The Cayman Islands Legislative Assembly has approved the anticipated new Law on licencing and registration for directors of Cayman Islands ('Cayman') corporate regulated funds although it has yet to be formally Gazetted.  Here we look at the background to the Law, its provisions, and who it will affect.

The Cayman Islands Legislative Assembly has approved the anticipated Contracts (Rights of Third Parties) Law, 2014 (the 'Law'), although it has yet to be formally Gazetted.  Here we look at how the Law will affect existing and future contracts governed by Cayman Islands (‘Cayman’) law, and the benefits it should bring to most funds contracts. This legislation, which formally recognizes third party contractual rights for the first time in Cayman, has been designed and introduced specifically for the investment funds industry. It brings Cayman law closer in line to the laws of the home jurisdictions of many of the fund clients who use Cayman as well as making it the first offshore jurisdiction to implement such laws.

INDUSTRY ADVISORY

Date: Wednesday, 12 March 2014
Contact: Angela Piercy
Direct: (345) 244-2266
Mobile: (345) 525-2266 • Fax: (345) 949-6374
E-mail: angela.piercy@gov.ky
Twitter: @CaymanFinServ
Websites: www.gov.ky;
www.caymanfinance.gov.ky

 

In order to keep industry informed of developments with Cayman’s framework for automatic exchange of information (AEOI), the FATCA Working Group is issuing this advisory on the US FATCA ‘responsible officer’ role.

Newbury v Sun Microsystems [2013] EWHC 2180 (QB) ('Newbury')

Cayman Realty Consultants Services Ltd. v Simba Ltd (Trading as Re/Max Cayman Islands), and Boggy Sand Road Land Company Ltd. CICA 8/ 2013  G281/2011("Cayman Realty")

 

Two recent cases, one in the UK and one in the Cayman Court of Appeal act as a reminder to make sure you do not unintentionally commit yourself to binding contractual terms during the negotiation process to buy or sell property. Here we look at the different points raised in each case and give some pointers on what to look for in an Offer to Purchase real estate in the Cayman Islands.

In response to the push towards greater global transparency on beneficial ownership, the UK has proposed a public register of ownership interests in companies, which could be searched by anyone, anywhere in the world.  It hopes the other G8 members will copy its model, but has left it to the Cayman Islands Government ('CIG') to decide if it wants to follow suit. The CIG has published a public consultation document on whether a central registry of beneficial ownership of interests in companies is the most appropriate and effective way to improve transparency. 

Jetivia SA & anor v Bilta (UK) Limited (in liquidation) & ors [2013] EWCA Civ 968

Not for the first, or last, time we need to look at the issue of corporate identity, here in the context of fraud. If a company's directors are using the company to perpetrate a fraud, is the company responsible or just the directors? 

In this two part piece, we look at how to migrate existing companies in and out of the Cayman Islands. Elsewhere we look at how to migrate an existing company into the Cayman Islands, but here we look at how to migrate a Cayman Islands registered company to another jurisdiction.

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Cayman Trusts (Amendment) Law 2019 in force from 14th June 2019...

The new Cayman Islands ('Cayman') Trusts (Amendment) Law 2019 (‘Amendment’) will bring...


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