Winston Churchill once said, "to improve is to change so to be perfect is to change often". With that in mind and with many high profile cross-border restructurings, such as the recent Ocean Rig restructuring, taking advantage of the already sophisticated restructuring regime offered by the Cayman Islands, the jurisdiction is determined to remain at the forefront of cutting edge cross-border restructurings.
One hotly anticipated area of legislative reform is the proposed introduction of a court supervised restructuring moratorium. The proposed regime would allow a company to petition for the appointment of restructuring officers to obtain a stand-alone restructuring moratorium, separate from the winding up regime. Whilst the legislative draftsman considers the proposed amendments to bring in effect the new restructuring moratorium process, companies can continue to utilise the provisional liquidation process to obtain an automatic stay on claims under Cayman Islands law whilst implementing a debt restructuring.
This article focuses on the current provisional liquidation regime in the Cayman Islands and how a moratorium can be obtained in a restructuring context.
The purpose of the appointment of provisional liquidators is typically to preserve and protect a company's assets pending the hearing of a winding up petition in respect of the company where there is evidence of potential dissipation or misuse of the assets. However, the Cayman Islands provisional liquidation procedure has proven to be a very useful and flexible tool to assist in the context of complex and cross- border restructurings.
In the Cayman Islands, there is presently no equivalent restructuring process such as the UK administration procedure or US Chapter 11 proceeding. Where a Cayman Islands company intends to effect a financial restructuring, provisional liquidators are often appointed in order to protect the company from creditor enforcement action or proceedings being commenced or continued without the leave of the Grand Court of the Cayman Islands.
The moratorium that is triggered on the appointment of provisional liquidators provides breathing space for a debtor to negotiate with its stakeholders and propose and implement a restructuring without the risk of the process being derailed by the actions of one or more dissenting creditors.
Pursuant to section 104(3) of the Cayman Islands Companies Law (2018 Revision), following the presentation of a winding up petition, a company may at the same time make an application seeking the appointment of provisional liquidators where (a) the company is, or is likely to become unable to pay its debts; and (b) the company intends to present a compromise or arrangement to its creditors. A compromise or arrangement can include a Cayman Islands' scheme of arrangement, a Chapter 11 restructuring or a foreign scheme of arrangement.
The presentation of a winding up petition against a company is a necessary pre-requisite to the application to open provisional liquidation proceedings. However, whilst that winding up petition is the gateway to accessing the Cayman Islands provisional liquidation regime, provisional liquidation does not necessarily result in the formal winding up and liquidation of the debtor. Rather, where provisional liquidation is used to support a successful financial restructuring where the debtor company survives, the end result is usually that the winding up petition is dismissed and the newly restructured company continues as a going concern. Provisional liquidation when used in a restructuring context in the Cayman Islands is therefore somewhat of a misnomer since the object of the proceedings is to typically rescue the company rather than to liquidate and dissolve the company.
If the Grand Court orders that a company be placed into provisional liquidation, three key consequences follow: (i) the winding up petition is adjourned; (ii) provisional liquidators are appointed; and (iii) a statutory moratorium takes effect.
The Grand Court is generally flexible in allowing sufficient time for the provisional liquidators to consider whether a restructuring is capable of being agreed and implemented in the circumstances. However, if it is evident that there is no realistic prospect for a successful restructuring to be implemented, then the Grand Court may list the winding up petition for hearing and make an order for winding up and the appointment of official liquidators.
Appointees must be licensed insolvency practitioners and at least one must be resident in the Cayman Islands. Provisional liquidators are officers of the Grand Court and agents of the company to which they owe fiduciary duties to act in good faith and in the interests of the company as a whole. However, the powers of the provisional liquidator are not circumscribed by statute and instead are expressly set out in the court order appointing the provisional liquidator. Accordingly, there is scope for the provisional liquidation regime to be used with real flexibility in the context of a restructuring depending upon how much control over the process the provisional liquidator is intended to have. As a result of that flexibility, in a restructuring context, a practice has grown in the Cayman Islands known as "soft-touch" provisional liquidation.
In a soft touch provisional liquidation, the provisional liquidator's powers do not typically displace the powers of the company's directors. The order appointing the provisional liquidators will clearly set out which powers the provisional liquidators are able to exercise (often limited to monitoring the progress of the restructuring and reporting to the Grand Court and the company's creditors) and which powers will be retained by the directors. It is open to the provisional liquidators to apply for further powers as necessary but it is clear that the provisional liquidation proceeding can be structured like a quasi-debtor in possession process or can support a debtor in possession process already underway in another jurisdiction.
Once provisional liquidators are appointed, an automatic stay is imposed prohibiting any suit, action or other legal proceeding, including criminal proceedings from being commenced or continued against the company without the leave of the Grand Court and subject to such terms as the court may impose.1 Notably however, such moratorium does not extend to restrict the rights of secured creditors who may enforce their security notwithstanding the appointment of a provisional liquidator and, accordingly, standstill or tolling agreements with secured creditors or the seeking of supporting relief in other relevant jurisdictions may still be necessary.
The Cayman Islands provisional liquidation proceedings have been recognised as "foreign main proceedings" under Chapter 15 of the US Bankruptcy Code on multiple occasions, thereby opening up avenues to the seeking of further relief under Chapter 15, including in the form of a stay on the taking of enforcement action by secured creditors which are subject to the jurisdiction of the United States Bankruptcy Court. Notable restructurings where Cayman Islands provisional liquidation proceedings have been recognised under Chapter 15 of the US Bankruptcy Code include Ocean Rig UDW Inc, 2 Mongolian Mining Corporation, 3 LDK Solar Co Ltd 4 and Suntech Power Holdings Co. 5
Commencement of the Cayman Islands provisional liquidation procedure
Section 104 of the Companies Law provides that at any time after the presentation of a winding up petition but before the making of a winding up order, the Grand Court may appoint a provisional liquidator. 6 Since provisional liquidation requires, as a pre-requisite, the presentation of a winding up petition, it follows that provisional liquidation is available to any company which is liable to be wound up by the Grand Court under the Companies Law. Whilst that includes a company incorporated and registered in the Cayman Islands under the Companies Law, a foreign company may also be wound up under the Companies Law if it has property located in the Cayman Islands, is carrying on business in the Cayman Islands, is the general partner of a Cayman Islands limited partnership or is registered as an overseas company under Part IX of the Companies Law.
It is not uncommon for global corporate groups to have a Cayman Islands holding company, whether ultimate or intermediate, and the majority of recent restructurings involving a Cayman Islands provisional liquidation have involved Cayman Islands incorporated companies. However, the recent cross-border restructuring of the Ocean Rig Group, a publicly listed, deepwater oil drilling contractor, demonstrates that foreign companies may and do access the Cayman Islands provisional liquidation regime to successful effect.
Under the Companies Law, a winding up petition may be presented by the company, any creditor, any contributory or, the Cayman Islands Monetary Authority in certain circumstances. 7 However, an application seeking the appointment of provisional liquidators on restructuring grounds (i.e. where a company is or is likely to become unable to pay its debts and the company intends to present a compromise or arrangement to its creditors) may only be made by the company itself. Whilst the Companies Law is clear on who may present a winding up petition and/or make an application for provisional liquidators to be appointed, the Grand Court has grappled on numerous occasions with the issue of whether or not the directors of a company are authorised to present a winding up petition in circumstances where they are not duly authorised by the company's shareholders.
Such issue stems from what is known as the Emmadart principle, which originates from the English case of Re Emmadart Ltd  Ch 540. The effect of Emmadart was that the directors may only present a petition in the name of the company if such action is authorised or ratified by the company's shareholders at a general meeting.
The Emmadart principle has been upheld as applicable in the Cayman Islands, most recently by Mangatal J in Re China Shanshui Cement Group Limited  (2) CILR 255 where Mangatal J declined to follow an earlier decision of Jones J in Re China Milk Products Group Ltd.  (2) CILR 61. In China Milk Jones J held that directors of insolvent companies were in fact allowed to present a winding up petition without shareholder authorisation. In China Shanshui, Mangatal J held that a winding up petition presented by the company's directors was not valid on account of the directors not having been authorised by the shareholders to present the winding up petition. Accordingly, the Grand Court was bound to conclude that the directors' application to also appoint provisional liquidators must also fail given that the prerequisite winding up petition had not been validly presented.
That requirement for shareholder authorisation is also reflected in the Companies Law which provides that where the company's articles of association (if the company was incorporated post March 1, 2009) authorise the directors to do so, the directors may present a winding up petition without the sanction of a resolution of the shareholders passed at a general meeting. 8 However, an issue arises in circumstances where the company was either incorporated prior to March 1, 2009 or the articles of association do not, in any event, authorise the directors to present a petition without shareholder authorisation.
In a restructuring context, this could be fatal since extracting the necessary authorisation from shareholders who are economically disenfranchised may not be possible. Additionally, where the debtor is listed, extracting the necessary consent from a dispersed group of shareholders may be practically impossible or at least logistically challenging.
As such, concern existed that if a company's directors were unable to present the necessary winding up petition in the name of the company due to a lack of shareholder authorisation, the company could not seek the appointment of provisional liquidators for restructuring purposes.
That concern has however been abated following the successful Cayman Islands restructuring of the CHC Helicopter group, the world's largest commercial helicopter services provider. The CHC restructuring was primarily achieved by way of a Chapter 11 proceeding in the United States Bankruptcy Court for the Northern District of Texas filed by CHC Group Ltd. (a Cayman Islands company) and certain of its subsidiaries.
The CHC restructuring however envisaged a transfer of CHC Group Ltd.'s assets to a new Cayman Islands limited liability company9 which would become the parent company of the restructured group. The method of implementing that transfer involved an asset sale to be completed within the framework of a Cayman Islands provisional liquidation proceeding which required validation by the Grand Court. The directors of CHC Group Ltd. were not however authorised to present a winding up petition without shareholder authorisation.
The solution was for an intra-group creditor to petition for the winding up of CHC Group Ltd., thereby opening the gateway for the company itself to apply for the appointment of provisional liquidators. This caused the Grand Court to consider whether an application to appoint provisional liquidators required shareholder authorisation. The Grand Court10 found that shareholder authorisation was not required and that the decision in Re China Shanshui had "no bearing on the situation where there is a separate creditor winding up petition in existence and where in those limited circumstances there [is] an application by the company, through its directors, for the appointment of [joint provisional liquidators]".
It is anticipated that this area of Cayman Islands law will be subject to legislative reform in the very near future, thereby bringing section 94 of the Companies Law in line with section 124 of the UK Insolvency Act in addition to the proposed introduction of a new stand-alone restructuring moratorium regime thereby offering companies with more avenues by which to benefit from an automatic stay on claims.
1 Section 97(1) of the Companies Law.
2 In re Ocean Rig UDW Inc., 17-10736 (Bankr. S.D.N.Y. Aug. 24, 2017).
3 Mongolian Mining Corporation, 17-10695 (SMB) (Bankr. S.D. N.Y. April 28, 2017).
4 In re LDK Solar Co., 14-12387 (PJW) (Bankr. D. Del. November 21, 2014).
5 In re Suntech Power Holdings Co., Ltd., 520 B.R. 399 (Bankr. S.D.N.Y. 2014).
6 Section 104(1) of the Companies Law.
7 Section 94(1) of the Companies Law.
8 Section 94(2) of the Companies Law.
9 The Limited Liability Companies Law 2016 of the Cayman Islands introduced a new type of Cayman Islands vehicle similar to a Delaware LLC.
10 In the matter of CHC Group Ltd (Grand Court, unreported, January 24, 2017).
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.