British Virgin Islands: Dispute Resolution Review (4th edition) - British Virgin Islands

Article by Eliot Simpson^*

I INTRODUCTION TO DISPUTE RESOLUTION FRAMEWORK

The British Virgin Islands ('BVI') are located approximately 60 miles due east of Puerto Rico at the north-eastern corner of the Caribbean Sea. They have a population of around 24,000, mostly on Tortola, the largest island at 12 miles long by three miles wide; nevertheless, the territory has achieved the status as a leading financial centre. Well over 800,000 companies have been incorporated within its shores, including a significant number of mutual funds and hedge funds and captive insurance and trust companies. It is the world's second largest jurisdiction for the incorporation of hedge funds.

The BVI(or technically, the Virgin Islands) remain a British overseas territory, with the British government retaining responsibility for its foreign policy and defence. Executive authority invested in the Queen is exercised on her behalf by the Governor, currently His Excellency, Mr Boyd McCleary. Otherwise, it is a largely self-governing jurisdiction, with its own Constitution (adopted in 2007 by the Virgin Islands Constitution Order) and Parliament.

The court system in the BVIconsists of a Magistrates Court, a High Court and a Court of Appeal, with the final court with appellate jurisdiction being the Privy Council in London. The Superior Court of Record for the BVIis the Eastern Caribbean Supreme Court ('the ECSC'), which also serves as the Superior Court of Record for two other British overseas territories (Anguilla and Montserrat) and six independent member states of the Organisation of Eastern Caribbean States (Antigua and Barbuda, the Commonwealth of Dominica, Grenada, St Christopher and Nevis, Saint Lucia, and St Vincent and the Grenadines) ('the OECS').

The ECSC consists of three divisions: the Court of Appeal, the High Court of Justice and the Commercial Court. The Court of Appeal is an itinerant court whose sittings rotate between the nine members of the ECSC. The BVIalso has a Magistrates Court, from which appeals lie direct to the Court of Appeal. The Magistrates Court has both a criminal and a petty civil jurisdiction.

In what is widely seen as an important development, not just for the BVIbut for the wider Eastern Caribbean region, the Commercial Division of the High Court opened in BVIin 2009. The court's first judge, Edward Bannister QC (an experienced English silk) began sitting in temporary premises in April 2009. In October 2009, the new and modern Commercial Court building opened for business.

II THE YEAR IN REVIEW

In the area of commercial disputes, a number of interesting and important decisions came out of BVI's Commercial Court and the Court of Appeal in 2011.

Some of the most significant decisions of 2011have arisen in the context of claw-back claims brought by funds to recover redemption proceeds paid to their investors, in particular claims made for restitution on the basis that the payments were made under mistakes of fact.

In a judgment given on 21September 2011in Fairfield Sentry Limited (In Liquidation) v. Bank Julius Baer & Co. Ltd and 33 Others (BVIHCV2010/030), the Commercial Court decided that an investor or former investor in a fund that has surrendered its shares on redemption has a good defence to a claim to claw-back redemption payments on the basis that they were made under a mistake.

The claims in question were brought by Fairfield Sentry Limited. Fairfield was a very substantial investor in Bernard LMadoff Investment Securities LLC ('BLMIS').

From 2 February 2011defendants filed applications for the trial of preliminary issues. In his judgment dated 20 April 2011, Mr Justice Bannister in the Commercial Court in BVIdirected a trial of four preliminary issues, which may be summarised as follows:

On the Article 11point, the defendants identified a number of documents that they argued were certificates, including contract notes, monthly account statements and e-mails.

Mr Justice Bannister found that none of the documents delivered by Fairfield to its investors were certificates of the directors within Article 11(1), not least because none of the documents were given or signed by (or on behalf of) the directors. Rather, he thought they were documents issued by Fairfield itself.

In light of this finding and the way the issues were formulated, Mr Justice Bannister did not need to deal with issues 2 and 3.

In his decision on issue 4, Mr Justice Bannister stated that the redemption of shares was a bargain and sale for which the consideration received by Sentry was the surrender of the rights of the redeeming shareholder. He did not consider that the bargain could be vitiated by the discovery of the fact that BLMISwas a Ponzi scheme. He said that he could also not understand how Sentry could recover the redemption price in circumstances where restitutio in integrum was no longer possible.

Mr Justice Bannister accepted that Aiken v. Short (1856) 1H&N210 and Barclays Bank Ltd v. WJ Simms Son & Cooke Southern Ltd [1980] QBD677 were authority for the proposition that a party will not be able to recover payment made by mistake where the payer has received consideration from the payee. He therefore held that it was not open to Fairfield to seek to recover the price it paid for the purchase of the shares of redeeming investors simply because it calculated the NAV upon information that had subsequently proved unreliable for reasons unconnected with any of the redeemers.

As a result, one representative defendant applied for summary judgment. The liquidators of Fairfield argued that the decision on preliminary issue 4 did not entitle the defendants to judgment. In particular, they sought to argue that they were able to continue their claim that Fairfield was entitled to set aside the redemptions on the ground that the payment of the redemption monies was effected under a mutual mistake.

In a further judgment given on 10 October 2011, Mr Justice Bannister found that the mutual mistake point remained open to Fairfield and was not determined by his decision on the second preliminary issue, which did not consider whether the redemption contracts were void. Nevertheless, applying the principle in Great Peace Shipping Ltd .v Tsavliris Salvage (International) Ltd [2003] QBD679, he went on to give judgment to the defendants on the basis that there was not a relevant mutual mistake. The question to be asked was whether the fact that, contrary to the assumed understanding of both parties, BLMISwas a Ponzi scheme meant that Sentry was unable to perform the contract that arose when a redemption notice was served in accordance with its articles of association. He did not consider performance to be impossible. He therefore concluded that Sentry was bound to fail on its claims as formulated.

Mr Justice Bannister also refused an attempt by the liquidators to adjourn the summary judgment application on the basis that further evidence might come to light showing that particular redeemers did not receive redemption monies in good faith.

The judgments have been appealed to the Court of Appeal.

Claims seeking to claw back redemption proceeds also came before the Commercial Court in Marty Steinberg and Others v. Banque de Patrimoines Prives Geneve et al (BVIHCV 2009/0253). The issue before the Court was whether to set aside service of the claim form out of the jurisdiction on two defendants and whether to set aside an extension of time for service of the claim form. Both the order giving permission for service and the order extending time for service were set aside and the statement of claim was struck out. First, it was found that no ground for service out was made out because the claim for restitution was not a claim made 'to enforce, rescind, dissolve or otherwise affect a contract' within CPR7.3(3), as it then was. Secondly, it was found that the claimants had failed to establish that they had a good cause of action as the claim was made more than six years after the relevant payments were made. The Court rejected the claimants' attempt to rely on Section 25 of the Limitation Ordinance, which provides that in an action for relief from the consequences of a mistake the period of limitation shall not run until the plaintiff has discovered the mistake or could with reasonable diligence have discovered it. In particular, the Court did not accept that the directors of the fund could not with reasonable diligence have correctly calculated the NAV, in circumstances where they in fact claimed to have been misled by the dishonesty of the fund's own agent. Thirdly, and lastly, the Court found that the claimants had failed to give any reason for needing to extend time for service of the claim form on the applicant defendants. This decision has been appealed to the Court of Appeal and its judgment is awaited.

In January 2010 in Western Union v. Reserve International Fund, Bannister J granted an application for the appointment of liquidators over Reserve International Fund. Western Union claimed to be entitled to redemption proceeds and therefore to make its application as a creditor. This was opposed on the basis of Section 197 of the Insolvency Act 2003, which provides that a member or past member cannot claim in a liquidation for a sum due to him or her in his or her character as a member. Mr Justice Bannister held that this did not apply to redemption proceeds that were due and payable, as these were not claimed in the character of a member.

The view that Section 197 does not prevent a former member from claiming as a creditor has, however, since been considered by the Court of Appeal in Westford Special Situations Fund v. Barfield Nominees Limited and Another (HCVAP 2010/014). In that case, the Commercial Court had made a winding-up order on the application of members seeking unpaid redemption proceeds on the basis that they were creditors and their claims were not barred by Section 197. The Court of Appeal gave judgment on 28 March 2011. The Court of Appeal decided that a redeeming investor does not become a creditor for the purposes of the Insolvency Act, by reason of Section 197. As such, the redeeming investor did not have standing to apply as a creditor for the appointment of liquidators to the fund.

In Yukos CIS Investments Limited and Another v. Yukos Hydrocarbons Investments Limited (HCVAP 2010/028), the Court of Appeal has considered the issue of 'free-standing' injunctions in support of foreign proceedings.

The proceedings were brought by Yukos CISInvestments Limited and Wincanton Holdings BV against Yukos Hydrocarbons Investments Limited, Fair Oaks Trade Invest Limited and Glendale Group Limited and Brittany Management Limited.

Yukos CISwas a subsidiary of OAO Yukos Oil Company. Yukos Hydrocarbons and Wincanton were both subsidiaries of Yukos CIS, and Fair Oaks and Glendale were subsidiaries of Yukos Hydrocarbons.

Following the conviction of Mikhail Khordorkovsky in 2005 on charges of tax fraud, the management of Yukos Oil restructured the assets of Yukos CIS. Yukos Hydrocarbons was transferred to Wincanton and then transferred by Wincanton to its own subsidiary, Financial Performance Holdings BV. Lastly, Wincanton's shares in FPHwere transferred to Stchting Administratiekantoor Financial Performance Holdings. Yukos CISby these steps ceased to have any control over its BVIsubsidiaries, although it retained the ultimate right to be paid their profits when the directors of Stichting FPHfound it fit to do so.

The assets of Yukos Oil were acquired by OJSC Rosneft, a Russian state-owned oil company. By action in the Dutch courts, Rosneft took control of Wincanton and sought further to set aside the transfer of the FPHshares to Stichting FPH.

While that matter was pending, Yukos CISand Wincanton, now controlled by Rosneft, sought orders from the Commercial Court in BVIto require the BVIcompanies to give disclosure of financial information; to freeze the assets of the BVIcompanies; and to appoint receivers over the BVIcompanies.

As there was no substantive proceeding taking place in BVI, the claimants sought to rely on the jurisdiction to grant freezing orders in aid of foreign proceedings that was recognised in Black Swan Investment ISA v. Harvest View Limited and Another.

Mr Justice Bannister in August 2010 refused to grant the orders sought.

The Court of Appeal gave its judgment on 26 September 2011and by a majority upheld the decision of the Commercial Court. The Court of Appeal did however unanimously recognise the jurisdiction asserted in Black Swan to grant free-standing injunctions in support of foreign proceedings. Indeed, it went further in accepting that this jurisdiction was not limited to interim relief in support of a foreign cause of action designed to obtain a money judgment. The Court held that the relief sought in the proceedings in the Netherlands would not entitle them to enforce a money judgment against the respondents' assets, nor establish a proprietary claim in respect of such assets. The foreign proceedings did not give rise to potential BVIproceedings to enforce the foreign judgments against the respondents' assets. The failure of the appellants to seek equivalent interim relief from the Dutch courts was a further discretionary factor that mitigated against granting the relief sought.

The availability of the Norwich Pharmacal jurisdiction to obtain information from companies' registered agents was considered by the Commercial Court in November 2010 in JSC BTA Bank v. Fidelity Corporate Services Limited and Others.¹ The claimant bank sought disclosure of information and documents relating to the ownership of BVIcompanies that had allegedly received tainted funds. Mr Justice Bannister decided that Norwich Pharmacal relief was not available because it was not necessary; the bank was aware of the identity of the alleged wrongdoers. He also decided that the facts did not support the grant of Bankers Trust relief. There was no evidence that any of the discovery defendants were likely to be in possession of relevant information. Mr Justice Bannister then considered the degree of involvement required before a third party could be required to give discovery. The discovery defendant must have participated in or been involved in the wrongdoing. The mere offering of corporate services to the BVIcompanies was not sufficient. There was no evidence that the discovery defendants had been involved in or facilitated the receipt by the BVIcompanies of stolen money. The bank therefore failed to pass the threshold 'involvement' test.

This decision was appealed to the Court of Appeal, which gave judgment on 21February 2011(HCVAP 2010/035). The Court of Appeal held that registered agents could not be considered as mere onlookers. By incorporating and maintaining vehicles used in the commission of fraud they facilitated (innocently) the commission of the fraud. In deciding that the disclosure sought was necessary, the Court of Appeal took into consideration fresh evidence (not before Mr Justice Bannister) that the suspected ultimate beneficial owners had denied, in English proceedings, any relationship with the BVIentities.

III COURT PROCEDURE

i Overview of court procedure

The rules of the Eastern Caribbean Supreme Court ('the ECSC CPR') are largely modelled upon the English Civil Procedure Rules ('the CPR'). There are, however, differences, and some areas covered in the English CPRdo not appear in the ECSC CPR. There is no detailed commentary published on the Rules.

In 2009, a new Rule, 79A, was added to the ESCSCPRin relation to the new Commercial Court. The Commercial Court has also issued a practice direction dealing with procedure in that court.

Also of considerable importance in BVIare the Insolvency Rules 2005. These set out detailed provisions on procedure and practice in insolvency matters. The ECSC CPRapplies in insolvency matters only to the extent that there is nothing inconsistent in the Insolvency Act 2003 or the Insolvency Rules, or a relevant practice direction.

ii Procedures and time frames

Cases may be commenced by claim form, fixed-date claim form or originating application.

Afixed-date claim form is used for matters that would formerly have been the subject of an originating summons or motion, and generally these are matters that will be decided on affidavit evidence without pleadings. These cases would typically take a few months to be dealt with.

Applications under the Insolvency Act where there is not an existing court proceeding, such as applications for the appointment of liquidators, will be made by originating application. These matters will typically take around two to three months to be dealt with.

Other cases where full pleadings are required will generally be commenced by claim form. These cases might be expected to take longer (such as one to two years) to reach trial.

iii Class actions

There are no class actions in BVI.

The ECSC CPRcontains provision on representative proceedings. Where five or more persons have the same or a similar interest, these provisions allow the court to appoint a representative body or one or more of those persons to represent all or some of the persons with the same or similar interest. These provisions are not widely used.

iv Representation in proceedings

A natural person may appear in court on his or her own behalf.

A body corporate can be represented by a duly authorised director or other officer, but it must be represented in 'open court' by a legal practitioner unless the court permits it to be represented by a director or officer.

v Service out of the jurisdiction

ECSC CPR Part 7 deals with service of court process out of the jurisdiction.

Rule 7.3 sets out the circumstances in which the court may permit a claim form to be served out of the jurisdiction.

The rules of the BVIHigh Court are broadly modelled on the English CPR. Leave may be given by the court to serve proceedings out of jurisdiction in appropriate cases. This could include cases where the defendant is a necessary and proper party to a claim that has been or will be served on another defendant, where a claim is founded on a contract with a BVIconnection, cases where a tort was committed within the jurisdiction and cases relating to property within the jurisdiction.

The BVIcourt will apply English principles of forum non conveniens. Where jurisdiction to entertain a dispute is established, the court thus retains a residual discretion to determine whether or not BVIis the forum most appropriate for the resolution of the dispute.

vi Enforcement of foreign judgments

Foreign judgments may only be enforced in the BVIat common law or in one of the limited instances provided for by statute.

The statutory machinery is to be found in:

The Foreign Judgments (Reciprocal Enforcement) Act 1964

The Governor in Council may nominate the High Courts of jurisdictions in which he or she is satisfied that 'substantial reciprocity of treatment will be assured as respects the enforcement in that foreign country of judgments given in the High Court'. To those jurisdictions, the intention was that an application for registration of the foreign judgment might be made under Section 4. Certain jurisdictions have been designated, although there is some doubt as to whether the designation exercise was carried out effectively.

The Reciprocal Enforcement of Judgments Act 1922

The Reciprocal Enforcement of Judgments Act applies only to judgments given in the High Court of England and Wales, Northern Ireland and the Court of Session in Scotland. It has also been extended to additional jurisdictions.

The judgment must be final and conclusive for a specified sum of money. Section 3(2) of the Act excludes judgments from the system of registration where they were obtained by fraud,² an appeal is pending or the time for appealing has not expired³, or it would be contrary to public policy to enforce the award. The BVIcourt would generally look to English decisions as to the types of conduct that may affront public policy; as a matter of policy, the courts of this jurisdiction will not enforce, directly or indirectly, foreign tax claims.

Section 3(2)(a) of the Act excludes from the system of registration judgments obtained where the original court lacked jurisdiction, or where:

An application must be made under Part 72 of the ECSC CPR. The application is made without notice, but supported by evidence. The application must contain certain prescribed information and have exhibited to it:

The simplicity of the without-notice application is to be contrasted with the common law route, which is to sue on the judgment itself.

Enforcement at common law

At common law, the courts in the BVIwill treat any final and conclusive monetary judgment as being a cause of action in itself under the doctrine of obligation by action, irrespective of the jurisdiction in which the judgment was obtained. There is no requirement of reciprocity.

The judgment creditor must:

If these matters are established, a retrial of the issues in the action will not be necessary. The creditor may instead apply for summary judgment under Part 15 of the ECSC CPR.

However, since the judgment creditor is proceeding by way of a fresh action, he or she will only be able to proceed in the BVIif he or she is able to serve the proceedings upon the judgment debtor by means permitted by Parts 5 and 7 of the ECSC CPR.

The mere existence of assets within the territory is not, in itself, sufficient to found jurisdiction in the BVIcourts. The need to serve proceedings can therefore give rise to difficulty where the debtor has assets within the territory, but is not him or herself resident within it. The ECSC CPRcontain no power in those circumstances to serve out of the jurisdiction – a position that contrasts curiously with the procedural rules in force in England.

It will still be possible to defeat an application for summary judgment, or indeed an action founded upon a foreign judgment, even one which is conclusive and made in respect of a specific sum, if:

In practice, enforcement of foreign judgments in BVIis usually achieved through the invocation of the insolvency jurisdictions to be found within the BVIInsolvency Act 2003. This is not surprising: it is a jurisdiction with only 24,000 people, but with over 800,000 business companies. Those wishing to enforce judgments will therefore typically be concerned with a corporate debtor – typically one with little connection to the jurisdiction – and whose assets may well be found elsewhere.

vii Assistance to foreign courts

The Hague Evidence Convention has not formally been extended to BVIby Order in Council. However, BVIhas implemented the Convention by the Evidence (Proceedings in Foreign Jurisdictions) Ordinance 1988. The BVIHigh Court will therefore provide assistance in response to a letter of request issued by a court in another jurisdiction. This might involve obtaining documents in BVIor obtaining depositions.

Part XIX of the Insolvency Act 2003 provides for orders that may be made in aid of foreign insolvency proceedings. This may assist a foreign office holder to restrain BVIproceedings, to obtain information or to obtain property.

viii Access to court files

Amember of the public may obtain copies of a claim form, notice of appeal and any judgments and orders from the court file.

ix Litigation funding

The position in BVIon third parties' funding litigation mirrors English common law. BVIdoes not have any statutory provisions on conditional fee arrangements.

Third-party funding arrangements, with independent parties funding litigation, is not yet common in BVI.

IV LEGAL PRACTICE

i Conflicts of interest and Chinese walls

Issues of conflicts of interest and Chinese walls are generally governed by English common law.

The OECSBar Association publishes a Code of Ethics that is observed in BVI. This includes provision that an attorney-at-law may represent multiple clients only if he or she can adequately represent the interests of each and if each consents to such representation after full disclosure of the possible effects of multiple representation. In all situations where a possible conflict of interest arises, an attorney-at-law must avoid all risk of conflict by leaning against multiple representation. In addition, except with the specific approval of his or her client given after full disclosure, an attorney-at-law must not act in any manner in which his or her professional duties and personal interests conflict or are likely to conflict. An attorney-at-law must not accept or continue his or her retainer or employment on behalf of two or more clients if their interests are likely to conflict, or if his or her independent professional judgment is likely to be impaired.

ii Money laundering, proceeds of crime and funds related to terrorism

Lawyers conducting certain types of business are considered to be professionals conducting relevant business under BVI's Anti-Money Laundering and Terrorist Finance Code of Practice 2008. Such business includes real estate transactions, managing client funds, and the creation, operation or management of legal persons or arrangements, or buying and selling of business entities. Lawyers engaged in those areas of business are required to obtain full 'KYC' information ⁵on their clients and to report any suspicious activity or transaction (failure to do so being a criminal offence).

V DOCUMENTS AND THE PROTECTION OF PRIVILEGE

i Privilege

English common law is applied to the issue of privilege. Privilege attaches principally to those documents that have been prepared for the purpose of seeking or providing legal advice, and those documents prepared in contemplation of litigation.

ii Production of documents

BVIdoes not have any recognised form of application for pre-action disclosure. There is nothing within the local Civil Procedure Rules that regulates such applications.

It is possible that an argument could be made that BVIlaw does (or should) possess a jurisdiction to order pre-action disclosure. Section 11of the West Indies Associated States Supreme Court (Virgin Islands) Act provides that the jurisdiction vested in the High Court in civil proceedings and in probate, divorce and matrimonial causes shall be exercised in accordance with the provisions of the Ordinance and any other law in operation in the territory and rules of court, and where no special provision is therein contained such jurisdiction shall be exercised as nearly as may be in conformity with the law and practice administered for the time being in the High Court of Justice in England.

The English High Court of Justice does recognise a jurisdiction to make orders for pre-action disclosure. That derives from the Supreme Court Act 1981. There is some debate as to whether Section 11is apt to confer a jurisdiction to grant pre-action disclosure. Probably there is no such thing as pre-action disclosure under BVIlaw.

Disclosure

Part 28 of the ECSC CPRcontains provision on disclosure and inspection broadly modelled on the English CPR. However, in BVIthe test for production is whether a document is directly relevant to the issues (rather than simply relevant).

Norwich Pharmacal Relief

The English Norwich Pharmacal line of cases has been applied in BVIand there is in practice nothing between English and BVIlaw in that regard.

Morgan & Morgan, and now JSC BTA Bank v. Fidelity Corporate Services Limited and Others, are the leading BVIappellate decisions relevant to the granting of Norwich Pharmacal relief. Following a period when such orders were perhaps more freely granted, Morgan & Morgan served to emphasise the importance of paying careful attention to whether or not the disclosure respondent, and the disclosure sought and its purpose, fall within conventionally accepted Norwich Pharmacal principles. As a rule, an application can succeed but only if it is shown:

Norwich Pharmacal in support of foreign proceedings

BVIdoes not have an equivalent of Section 25 of the Civil Jurisdiction and Judgments Act 1982. However, in practice the court has made orders even where no BVIproceedings are commenced and the court has taken a broad view of its jurisdiction.

VI ALTERNATIVES TO LITIGATION

i Overview of alternatives to litigation

Commercial disputes that are pursued in BVIare generally dealt with in the Commercial Division of the High Court rather than by alternative means. If a dispute is subject to an arbitration agreement, or the parties are minded to mediate, these processes will typically take place elsewhere. Nevertheless, most commercial litigators in BVIhave experience in other jurisdictions and are familiar with arbitration and mediation and can consider these options where appropriate. In practice, issues that arise in relation to arbitration tend to be either questions of enforcement or of ancillary orders.

ii Arbitration

Arbitration in BVIis governed by the Arbitration Ordinance 1976, which contains provisions relevant both to domestic and foreign arbitrations and in relation to the enforcement of arbitral awards.

The Arbitration Ordinance gives the High Court jurisdiction to grant ancillary relief in connection with an arbitration, although it remains a moot point whether this can be used in relation to a foreign arbitration.

The BVIis a dependent territory of the United Kingdom, which is a party to the New York Convention. The BVIParliament has given effect to the Convention by enacting Part IX of the Arbitration Ordinance, 1976. In what the Court of Appeal has held to be a clear signal of the legislature's intent (IPOC International v. LV Finance Group Limited (2007)), the text of the New York Convention is to be found within a schedule to the Ordinance.

A'convention award' is defined as meaning an award made in pursuance of an arbitration agreement in the territory of a state other than the territory or the United Kingdom that is a party to the New York Convention.

The Ordinance provides that any such award can be enforced:

These provisions spawned litigation in the IPOC case, where the award included declaratory relief. The court rejected the submission that the common law operated to prevent the enforcement of purely declaratory relief. In rejecting that submission, the Court of Appeal noted that Section 36(1) provides that the '[e]nforcement of a Convention Award shall not be refused except in the cases mentioned in this section'. IPOC also put to bed the question of whether or not partial arbitral awards could be enforced.

The only grounds upon which enforcement may be refused are where:

In addition, similar jurisdiction and public policy exceptions appear at Section 36(3): 'enforcement of a convention award may also be refused if the award is in respect of a matter which is not capable of settlement by arbitration, or it would be contrary to public policy to enforce the award'.

The procedural mechanism for enforcement is to be found within the ECSC CPR43.10, which provides that the application may be made without notice to the court but supported by an affidavit that exhibits the award, gives an address for service for the debtor and, where the award is for the payment of money, a certificate as to the sum due.

iii Mediation

By Rule 27.7 of the ECSC CPRthe court may adjourn a case management conference to enable settlement discussions or a form of ADRprocedure to continue.

VII OUTLOOK and CONCLUSIONS

The disputes work in BVImostly reflects the large number of companies incorporated here. In the current economic climate, corporate insolvency work is bread and butter for BVIdisputes lawyers.

In the past 12 months the litigation market, particularly in the area of insolvency, has continued to grow. There are a number of new players in the market, both law firms and insolvency practitioners. The large body of fund disputes that followed the financial crash of late 2008 has continued to generate litigation and applications for the appointment of liquidators. At the same time, there have been a number of new fraud cases coming through the courts, and shareholder disputes continue to arise on a regular basis. This growth in litigation is likely to continue at least for the next 12 to 24 months.

* Eliot Simpson is a partner at Appleby.

Footnotes

^{1. BVIHC (COM) 137 of 2010.}

^{2. Section 3(2)(d).}

^{3. Section 3(2)(e).}

^{4. Section 3(2)(c).}

^{5. 'Know your customer' information.}

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.