Cayman Islands: SEB v Weavering Court Of Appeal Judgment

Last Updated: 31 May 2017
Article by Guy Manning and Michael Popkin

FIRST WEAVERING PREFERENCE CLAIM UPHELD BY COURT OF APPEAL

Earlier this year, the Cayman Islands Court of Appeal ("CICA") heard the appeal of Skandinaviska Enskilda Banken AB (Publ) ("SEB") against the 5 January 2016 order of Mr Justice Clifford of the Grand Court in Conway and Walker (as joint official liquidators of Weavering Macro Fixed Income Fund Limited) v SEB1. Justice Clifford had held that payments received by SEB from Weavering Macro Fixed Income Fund Ltd (the "Company") shortly prior to the Company's liquidation constituted voidable preferences and required SEB to repay those amounts to the Company's joint official liquidators ("JOLs").

The CICA handed down its judgment on 18 November 2016, unanimously dismissing SEB's appeal on all issues and taking the opportunity to comment on a number of principles of Cayman insolvency law in a way that is likely to have implications far beyond the world of voidable preferences. In early December, SEB filed notice of its intention to appeal the CICA's decision to the Privy Council.

BRIEF BACKGROUND

The Company was an open-ended investment company, trading mainly in interest rate derivatives, that went into liquidation on 19 March 2009. The liquidation was prompted by the discovery of fraud on the part of the principal of the Company's investment manager, Magnus Peterson. In 2015 Mr Peterson was convicted and sentenced to 13 years' imprisonment.

During the course of 2006 to 2008, SEB had subscribed for approximately US$9.5 million in redeemable participating shares in the Company as custodian and nominee for a number of clients.

Shortly after the collapse of Lehman Brothers in September 2008, many of the Company's investors sought to redeem their shares. This included SEB, which issued redemption notices in respect of all of its shares in October 2008 for a 1 December 2008 redemption day. As a result, redemptions totalling US$138.4 million became due to redeeming shareholders on 1 December 2008 (the "December Redeemers"). Redeeming shareholders with a 2 January 2009 redemption day (the "January Redeemers") were owed US$54.7 million. Redeeming shareholders with a 2 February 2009 redemption day (the "February Redeemers") were owed US$30 million.

The offering memorandum for the relevant shares stated that "Redemption payments are generally made within 30 calendar days after the Redemption Day".

SEB was paid just over US$1 million by the Company on 19 December 2008. It received a second payment of 25% of the balance of the redemption amounts owing to it on 2 January 2009 and a third and final payment of the remaining 75% on 11 February 2009. In total, SEB received approximately US$8.2 million in redemption payments (the "SEB Redemption Payments").

All but three large December redeemers had been paid their redemption claims in full by the time the Company went into liquidation on 19 March 2009. The January Redeemers and the February Redeemers were never paid.

THE FIRST INSTANCE DECISION

The Grand Court held that the SEB Redemption Payments were each invalid as a preference over the other creditors of the Company pursuant to section 145(1) of the Companies Law (the "Law") and ordered that SEB repay those amounts to the JOLs.

THE APPEAL

SEB appealed the Grand Court's decision on several different grounds, none of which succeeded. The CICA was asked to rule on three distinct issues:

  • The Solvency Issue – At the time that the Company made each of the SEB Redemption Payments, was the Company unable to pay its debts within the meaning of s93 of the Law?
  • The Preference Issue – Were the three SEB redemption payments made with a view to giving SEB a preference over the other creditors?
  • The Repayment Issues – Are common law defences available to SEB (such as the absence of unjust enrichment and change of position) or is the JOLs' claim against SEB contrary to public policy due to being founded on illegality, such that SEB should not be required to repay the claimed amounts?

The Solvency Issue

It is a condition of the application of section 145(1) of the Law that for a payment to be held to be preferential the Company must have been insolvent within the meaning of section 93 of the Law at the time that the relevant payment was made.

The CICA upheld the first instance judge's finding that the JOLs had discharged their burden of proving that on the date of each of the SEB Redemption Payments the Company was unable to pay its debts. The Company was therefore insolvent within the meaning of section 93(c) of the Law. Each of the three points on which SEB had appealed the court's decision on solvency was rejected.

The Fraud Point

SEB contended that the published NAVs, which had assumed that certain swaps had the value fraudulently attributed to them by Mr Peterson, were not valuations within the meaning of the Company's Articles and that in the absence of any alternative figures stating the Company's true asset value, there was no material before the Court on which it could conclude that the Company was insolvent at the relevant times.

The CICA rejected that contention, favouring instead the JOLs' submission that the reasoning in the Privy Council's decision in Fairfield Sentry2 applicable to this case. In the Court's view, the published NAVs were binding in favour of redeemers and conclusive at the time of the SEB Redemption Payments notwithstanding that, because of Mr Peterson's fraud, the NAVs were, in fact, incorrect. The CICA noted that Article 34 of the Company's Articles of Association provided that any valuations of the Company's assets made in accordance with the Articles is binding on all persons, and that such a provision was fundamental to the mechanism by which investors in the Company acquired and redeemed shares.

The 30 Day Point

SEB contended that the 30 day window for payment post-Redemption Day, as stated in the relevant offering memorandum, meant that the Company was not in breach of contract until that 30 day window had passed without payment so the First SEB Redemption Payment, received within that 30 day window, was not preferring SEB over anyone else when made, as other December redeemers were not owed their money until the end of the 30 days.

The CICA rejected that contention, agreeing with the first instance judge that this issue had been concluded in Culross Global SPC Ltd v Strategic Turnaround Master Partnership Ltd3 (and on appeal to the Privy Council4). The Privy Council in that case clearly rejected the proposition that a statement in an offering memorandum or similar document indicating when payment of a redemption price would be made prevents an immediate liability from arising on the redemption day. The redemption payments became due to the December Redeemers on 1 December 2008 and the CICA held that those amounts were properly taken into account by the first instance judge in determining whether the Company was solvent when the SEB Redemption Payments were made.

The Future Debts Point

This was an alternative formulation of the 30 Day Point. SEB contended that the first instance judge was wrong to treat the Company as insolvent on 19 December (the date of the first SEB Redemption Payment) because, on SEB's contention, no debt was due and payable in respect of the December Redeemers' claims until 31 December (30 days after the 1 December redemption date).

Having found that the redemption payments became due on the relevant redemption date and not 30 days later, the CICA did not have to take this point further, but it nevertheless explicitly rejected this interpretation of the insolvency test in Cayman. The Court held that the cash flow test of solvency in the Cayman Islands is not confined to consideration of debts that are immediately due and payable. It also permits consideration of debts that will become due and payable "in the reasonably near future". This is a significant departure from previous Cayman Islands authorities.

The Preference Issue

A further condition of the application of section 145(1) of the Law is that the payment said to be a preference must be made to a creditor "with a view to giving such creditor a preference over other creditors".

SEB put forward several bases on which it contended that the first instance judge was wrong in his conclusion that this condition had been met.

The Dishonesty Point

SEB contended that the first instance judge erred in implicitly rejecting the need to find some evidence of dishonesty in order for a preference to be found.

The CICA disagreed. It confirmed that section 145(1) of the Law contains no implied requirement of dishonesty on the part of the Company in order for a payment to be preferential.

The Mistake Point

The first instance judge held that, based on the evidence, the Company had the intention of paying certain Swedish redeemers ahead of other December Redeemers (due to Mr Peterson's impression that those Swedish redeemers would be reinvesting the payments into another fund managed by him). The fact that Mr Peterson's impression may have been incorrect did not matter. The Company's intention to pay the Swedish redeemers first amounted to a dominant intention to prefer a particular class of creditors (of which the Company thought, correctly or not, SEB was a member), and resulted in a preference, in fact, of SEB.

SEB contended that, in the absence of any direct evidence from Mr Peterson as to how he was mistaken about the Swedish redeemers' intention to invest in the Swedish fund, it was equally plausible that Mr Peterson had simply highlighted the wrong investor and never had any intention to prefer SEB.

The CICA rejected that contention. It concluded that the evidence on why the first SEB Redemption Payment was made was clear: Mr Peterson wanted early payment to be made to a particular class of December Redeemers and had identified, rightly or wrongly, SEB as being a member of that class. That resulted in SEB receiving a payment from the Company that the Company intended to be made in preference to other creditors.

The Continuing Intention Point

The first instance judge concluded that not only did the Company have the dominant intention of preferring SEB (as a member of the class of Swedish redeemers) in respect of the first SEB Redemption Payment, but that such an intention also existed in respect of the second and third SEB Redemption Payments.

SEB challenged that conclusion in respect of the second and third SEB Redemption Payments, which were made after substantial payments had already been made to other investors.

The CICA agreed that there was insufficient evidence that the Company had the dominant intention to prefer SEB as a member of the class of Swedish redeemers in respect of the second and third SEB Redemption Payments and that the trial judge erred on this point.

However, that was not the only base on which the trial judge relied to support his finding that the second and third SEB Redemption Payments were preferential. The trial judge considered, in circumstances where he had found that Mr Peterson knew that the Company had no prospect of being able to pay the January and February Redeemers in full, that the Company's stated policy of making a 25% initial payment to the December Redeemers with the remaining 75% to be paid later, and of giving priority to redemptions that were not "large redemptions", reinforced the conclusion he had already reached.

The CICA held that these policies, in themselves, were sufficient to justify the trial judge's conclusion of a specific intention to prefer SEB in respect of the second and third SEB Redemption Payments, stating:

"The proper course would have been to suspend redemptions (if that were by then possible) or liquidate the Company. [Peterson] nevertheless caused the Company to adopt a policy designed to allow the December redeemers to be paid before other redeemers. The Second SEB Redemption Payment and the Third SEB Redemption Payment were made pursuant to this policy, and had the intended effect of preferring SEB (as one of the class of December Redeemers) over the body of January Redeemers. SEB says that it was not preferred in the application of the policy, but that does not answer that point. Although the policy may have been applied consistently in relation to the December Redeemers, so that SEB gained no advantage over them, it did give SEB an advantage over the January Redeemers and (in the case of the Third SEB Redemption Payment) over the February Redeemers, all of whom were to the knowledge of Magnus Peterson unlikely to be paid. That is in my opinion sufficient to justify the judge's conclusion of a specific intention to prefer. As the judge recorded at [78], SEB did not put pressure on the Company to pay, or even request payment after giving notice of redemption, so there was nothing to displace the inference that SEB was paid pursuant to that intention."

This amounts to a departure from current Cayman Islands and English authorities and is likely to be one of the issues challenged on SEB's appeal to the Privy Council.

The Repayment Issues

The repayment issues arise from the fact that, unlike the equivalent preference provisions in English statute, the Cayman Law does not explicitly direct that payments found to be preferential be repaid to the insolvent company; it only declares such payments to be 'invalid'.

SEB contended that, in the absence of any specific statutory right to claim repayment of preference amounts, liquidators must rely on a restitutionary remedy or a common law claim in unjust enrichment. If that is the case, SEB contended that common law defences, such as the absence of unjust enrichment and change of position must be able to be pleaded in defence to preference claims under section 145(1) of the Law.

The CICA rejected those contentions; holding that it is implicit in section 145(1) of the Law that, where the conditions of that section are satisfied, a preferential payment is automatically avoided and it (or its equivalent) is to be returned to the insolvent company. It confirmed that the first instance judge was right to reject the availability of common law defences to preference claims.

The CICA also explicitly rejected SEB's change of position defence on the facts, stating:

"[SEB] claims to have changed its position by paying the proceeds to Catella and HQ Solid [the clients on whose behalf SEB held the Weavering shares] in circumstances where it now has no ability to recover them; but the position in fact was that it paid them over on terms that included contractual indemnities. The deterioration in SEB's position stems not from its payment of the proceeds but from the fact that the indemnities have, according to the evidence, always been worthless. SEB's failure to procure a valuable indemnity or otherwise protect its position cannot be said to amount to a change of position sufficient to afford a defence to the preference claim."

In respect of SEB's contention that the JOL's claim was founded on illegality and was therefore contrary to public policy, the CICA held that, similar to the common law defences, the policy underlying section 145(1) – the necessity to procure pari passu distribution of available assets among all creditors – prevents those issues from arising.

COMMENTARY

While Weavering is, at its core, a preference case, the way that the CICA has dealt with issues in reaching its conclusions in this case will have a significant impact on a range of disputes reaching far beyond preference claims in Cayman. These issues include:

Definition of Insolvency

The CICA stated [at 40] that:

"The cash flow test in the Cayman Islands is not confined to consideration of debts that are immediately due and payable. It permits consideration also of debts that will become due in the reasonably near future."

While this has long been the approach taken to the cash flow test in other Commonwealth jurisdictions where the statutory definition of insolvency explicitly incorporates a forward-looking element, until now it has not been understood that there was any forward-looking element in the Cayman test.

The cash flow test for insolvency in the Cayman Islands is set out at section 93(c) of the Law, which states:

"A company shall be deemed to be unable to pay its debts if.... it is proved to the satisfaction of the Court that the company is unable to pay its debts."

This is to be contrasted with the equivalent provision at section 123(1)(e) of the English Insolvency Act 1986 which states:

"A company is deemed unable to pay its debts... if it is proved to the satisfaction of the court that the company is unable to pay its debts as they fall due" (emphasis added).

In Weavering, the CICA specifically took the view that the words "as they fall due" add nothing in substance to the test and stated5:

"In Eurosail6, Lord Walker, after noting that the words 'as they fall due' were introduced for the first time in the Insolvency Act 1985, said (again at [37]) that despite the difference in form they made little significant change in the law and served to underline that the cash flow test was concerned both with presently-due debts and with debts falling due in the reasonably near future. Any other conclusion leads to artificiality: if a company is able to pay a small debt due on a particular day, but will inevitably be unable to pay a much larger debt due on the following day, it is artificial to say that on the first day it is not unable to pay its debt."

This clarification of the cash flow insolvency test in Cayman means that Cayman companies must now incorporate a forward-looking element into their consideration of when they are at risk of being presently insolvent. What will constitute 'the reasonably near future' for the purposes of the test will be fact specific in each case.

Recalculation of NAV

As part of the fraud point used to dispute the first instance judge's finding of insolvency, SEB contended that because Weavering's published NAVs were calculated based on fraudulent information provided by Magus Peterson, they were not calculated in accordance with the Company's Articles and therefore not binding. As a result, SEB contended that none of the redeeming shareholders was entitled to be paid by reference to the published NAV7. Without those debts, or alternative figures stating the Company's true asset value at the relevant times, there was no evidence on which the Court could base a finding of insolvency.

In the recent case of Primeo Fund v Pearson8, Mr Justice Jones suggested that a NAV would not be binding if some conduct of an agent that could properly be imputed to a company had the effect of vitiating the contract between the company and its members. A distinction was drawn in that case between 'internal fraud', which would vitiate a valuation, and 'external fraud' which would not. As Weavering was a case of internal fraud, this would imply that the NAV could properly be recalculated. The CICA explicitly disagreed with that proposition stating:

"There is in my view no difference between an internal and an external fraud in terms of the binding nature of a NAV: the whole scheme of the Company's articles requires its business to be conducted on the basis that the NAV is binding, whether it is accurate or not."

The CICA preferred the view expressed by Lord Sumption in the Privy Council's decision in Fairfield Sentry v Migani9 that:

"If, as the articles clearly envisage, the subscription price and the redemption price are to be definitively ascertained at the time of the subscription or redemption, then the NAV per share on which those prices are based must be the one determined by the directors at the time, whether or not the determination was correctly carried out..."10

The rejection of the 'internal' v 'external' fraud distinction as expressed in Primeo and the limitation on a company's ability to recalculate NAV on the discovery of a fraud will no doubt be the subject of serious consideration in the other Cayman liquidations of investment vehicles where these issues are currently relevant.

Rejection of Change of Position Defence

The CICA's finding that no change of position defence is available will be of concern to custodians who receive redemption payments on behalf of their clients from financially distressed funds. The Court made it very clear that the fact that a custodian has paid out the proceeds of any redemption payment to or on behalf of its customer will not, in itself, provide it with any defence to a preference claim by a liquidator. It is up to the custodian to take steps to protect itself against that risk, whether through adequate indemnity arrangements or other means.

Footnotes

1 [2015] (2) CILR 278

2 [2014] UKPC 9

3 2008 CILR 447

4 2010 (2) CILR 364

5 At [40]

6 BNY Corporate Trustee Services Ltd v Eurosail-UK 2007-3BL plc [2013] 1 WLR 1408

7 SEB was effectively arguing that it should not have received any of the SEB Redemption Payments due to the fraudulent NAV. They were able to do this as any claim that the JOLs may have been able to bring to recover payments made by mistake based on the fraudulent NAV was time-barred. SEB asserted that it was entitled to make this argument to resist a finding of insolvency.

8 [2015(1) CILR 482]

9 [2014] UKPC 9, [2014] 1 CLC 611

10 Ibid at [24]

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Similar Articles
Relevancy Powered by MondaqAI
 
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
 
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions