The BVI Court of Appeal has recently given further guidance on
the application of the established principles of forum non
conveniens in the context of a claim brought in tort against
certain BVI incorporated companies.
In Anjie Investments Limited -v- Cheng Nga Yee the
Claimants brought proceedings in the BVI Commercial Court alleging
fraudulent misrepresentation, as a result of which, they alleged,
they transferred their shareholding in a BVI company to Anjie
Investments Limited ("Anjie"), itself a BVI company.
Anjie applied to strike out the Claim and, in the alternative,
to stay the Claim on the grounds that the BVI Courts were not the
appropriate forum for the trial of the action: rather, the Court of
Hong Kong was the appropriate forum. At first instance, the
Commercial Court Judge (Farara J (Ag)) disagreed with Anjie. Whilst
Farara J expressed satisfaction with many of Anjie's arguments,
it appeared that he was particularly swayed by the fact that the
BVI corporate defendant was being misappropriation of shares in a
BVI company also took place in the jurisdiction.
The Court of Appeal, whilst recognising that forum cases are
generally matters left to the discretion of the first instance
tribunal, disagreed and, set aside the Commercial Court's
The Commercial Court, the Court of Appeal determined, had
wrongly identified the place of commission of the alleged tort.
Given that the cause of action was misrepresentation, the key to
determining the appropriate forum was to identify where the alleged
misrepresentations had been made: that was undeniably Hong Kong.
The fact that the updating of share registers might have occurred
in the BVI, was none to the point: that was merely a
"collateral and administrative" act, consequent upon the
Further, and applying the analysis of the Privy Council in
Nilon Limited -v- Westminster Investments S.A (also an
appeal from a BVI matter), the fact that the subject matter of the
Claim was shares in a BVI company was at best a "paper"
connection and not a connection (c.f. the view of the Commercial
Court) of any real value.
The case serves as a useful reminder that forum cases must be
considered in a careful and forensic manner, including down to the
level of analysing precisely where the tort alleged was committed
and which elements of the actions complained of, actually
constitute the tort. It also highlights that the former approach,
namely that BVI must be the appropriate jurisdiction if the claim
concerns the affairs of a BVI company, has been firmly consigned to
Richard Evans (BVI) appeared and led the successful Conyers team
of Norman Hau (Hong Kong) and Murray Laing (BVI). Matthew Hardwick
QC of 3 Verulam Building, London was leading counsel for the
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Last year we reported that the DIFC had successfully established itself as a so called ‘conduit' jurisdiction for the enforcement of foreign and domestic arbitral awards as well as foreign money judgements.
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