The common law of BVI after a general idea – Litigation, mediation and arbitration
British Virgin Islands: The common law of BVI after a broad idea
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The Judicial Committee of the Privy Council recently delivered its much anticipated judgment in the BVI’s joint appeals in Broad Idea International Ltd v Convoy Collateral Ltd and Convoy Collateral Ltd v Cho Kwai Chee.
Some key lessons can be learned from the judgment
- With respect to service on a foreign defendant of a claim form in which a freezing injunction is the only remedy sought, the Rules of Civil Procedure of the Eastern Caribbean Supreme Court 2000 (the âCE RPCsâ) do not provide no power to the courts of the BVI. . Consequently, this apparent limitation of the CE RPC can only be corrected by their amendment.
- Reaffirming the jurisdiction of Black Swan (which has since been placed on a statutory basis) and departing from the dicta of the House of Lords in The Siskina, the Privy Council noted that a freezing injunction is not, in actual fact, analysis, incidental to a cause of action, in the sense of a request for substantial relief, or not at all. The essential purpose of a freezing injunction is to facilitate the execution of a judgment or of an order to pay a sum of money, by preventing the assets against which such a judgment could potentially be executed from being processed. so that insufficient goods are available to meet the judgment. Therefore, there is no policy reason to link the grant of such an injunction to the existence of a cause of action.
The common law of the BVI (and perhaps more generally) on the granting of freezing orders can be stated as follows (by Lord Leggatt at paragraphs 101 and 102):
a) A court having equitable and / or statutory jurisdiction to grant injunctions where it is just and convenient to do so has the power to grant a freezing injunction against a party over which the court has personal jurisdiction. on condition that :
i) the plaintiff has already obtained or has valid arguments for obtaining a judgment or order for payment of a sum of money which is or will be enforceable through the legal process;
(ii) the defendant has assets (or is likely to take actions other than in the ordinary course of business which will reduce the value of the assets) against which such judgment could be enforced; and
(iii) there is a real risk that, unless the injunction is granted, the defendant will treat these assets (or take actions that make them less valuable) other than in the ordinary course of business, such that the availability or the value of the assets are depreciated and the judgment is not satisfied.
b) Although other factors are potentially relevant to the exercise of the discretion to grant a freezing order, there are no other relevant restrictions on the availability in principle of the remedy. Specifically:
i) The judgment need not be a judgment of the national court – the principle also applies to a foreign judgment or other enforceable award in the same way as a judgment of the national court using the powers of court execution.
ii) Although this is the usual situation, there is no requirement that the judgment be a judgment against the Respondent.
iii) It is not necessary that the proceedings in which the judgment is requested have already been initiated nor that a right to institute such proceedings has already arisen: it is sufficient that the court can be satisfied with a sufficient degree of certainty that a right to bring an action will arise and that an action will be brought (whether before the national court or before another court).
The full text of the Privy Council’s decision is available here.
The content of this article is intended to provide a general guide on the subject. Specialist advice should be sought regarding your particular situation.
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