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Walkers Announces 2019 Promotions

Walkers is pleased to announce that 18 attorneys across its global offices have been invited to join the partnership. In addition, 13 associates have been promoted to senior counsel.

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Legislative Amendments to the National Pension Scheme

This advisory summarises key changes to Bermuda's national pension scheme. The National Pension Scheme (Occupational Pension) Amendment Act 2019 (the "Amendment Act"), which amends the National Pension Scheme (Occupational Pension) Act 1998 (the "Act"), effects substantive changes to Bermuda's National Pension Scheme. The Amendment Act makes consequential amendments to the National Pension Scheme (General) Regulations 1999 (the "General Regulations") and the National Pension Scheme (Financial Hardship) Regulations 2010 (the "Financial Hardship Regulations"), (together, the "Regulations").

The Amendment Act came into force on 30 December 2019, with some amendments effective immediately, and others coming into force on 2 January 2020 and 2 March 2020. The Amendment Act increases the requirements under existing provisions and introduces new provisions which affect administrators, employers and employees. It also provides the Pension Commission (the "Commission") with wider powers over the administration of pension plans, pension funds and local retirement products.

 

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Bermuda Monetary Authority Guidance on Outsourcing

The Bermuda Monetary Authority (the "BMA") has published guidance with effect from 1 May 2020 (the "2020 Guidance") which replaces the previous guidance on outsourcing for Banks and Deposit Companies issued by the BMA in May 2007. The scope of the 2020 Guidance has been extended and is now applicable to Banks, Deposit Companies, the Bermuda Stock Exchange, Corporate Service Providers, Trust Companies, Money Service Businesses, Investment Business, Fund Administrators and the Credit Unions licensed by the BMA (the "RLE").

The 2020 Guidance applies to all outsourcing arrangements except those outsourcing arrangements that are subject to the Proceeds of Crime (Anti-Money Laundering and Anti-Terrorist Financing) Regulations 2008 (the "Regulations"), as described in the '2016 Guidance Notes for AML/ATF Regulated Financial Institutions on Anti-Money Laundering and Anti-Terrorist Financing'.

 

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The BVI Courts appoint a receiver to take control of a PRC judgment debtor’s assets

A recent decision in the British Virgin Islands (“BVI”), BVIHC (Com) 0032 of 2018, is notable as being the first case of which we are aware where the BVI Court has recognised and enforced judgments from the People’s Republic of China (“PRC”) Courts (and may assist future applicants seeking reciprocal relief from the PRC Courts for recognition of BVI Court orders). The case involved an application by a bank from the PRC for the appointment of post-judgment receivers by way of equitable execution over shares in a BVI company in order to enforce a multi-million dollar judgment debt.

Importantly, the order gives the court appointed receivers the ability to exercise shareholder voting rights and to take effective control of the BVI company by changing its board of directors (“Board”). This should enable the value of the shares to be maximised, and should therefore theoretically aid the enforcement of future judgments where assets are held in a BVI incorporated vehicle.

 

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BVI: Introduction of Registration Regime for Closed-Ended Funds

On 31 December 2019, the British Virgin Islands government enacted the Securities and Investment Business (Amendment) Act, 2019 and the Private Investment Funds Regulations, 2019 (together, the “Law”). On the same day, the British Virgin Islands Financial Services Commission (the “FSC”) published the Private Investment Funds Regime Guidelines and the Fund Safekeeping Arrangements Guidelines (the “Guidelines”). This advisory summarises the key features of the Law and the Guidelines and their likely impact on closed-ended funds and their managers. While the publication of the Law and the Guidelines have answered certain of the key questions that we identified when the consultation draft of the Law was published, there remain areas where further guidance is anticipated. As any of the matters discussed in this advisory develop in the coming months, we will publish additional advisories and guidance.

Private funds have until 1 July 2020 to complete their initial registration (whether new funds or existing ones).

 

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BVI court considers registration of foreign arbitration awards

In a recently handed down decision of Re Kirkland Intertrade Corp (BVIHCM 2019/0149), the BVI Commercial Court has confirmed that the BVI Arbitration Act 2013 (the "Arbitration Act") does not require an award made by a foreign Arbitration Tribunal to be registered in the BVI before the award creditor can proceed with an application to wind up. The decision of the Privy Council (on appeal from the BVI) in Vendort Traders Inc v Evrostroy Grupp LLC [2016] UKPC 15 which dealt with the position prior to the coming into force of the Arbitration Act 2013, therefore remains good law.


The application to wind up Kirkland Intertrade Corp ("Kirkland") was made on the basis of a debt created by a partial final award (the "Award") made in an arbitration between (inter alios) the Applicant, Daselina Investments Ltd ("Daselina") and Kirkland before the London Court of International Arbitration ("LCIA"). Under the terms of the Award, Kirkland was liable to pay Daselina US$26 million principal plus interest. Daselina served a formal letter of demand on Kirkland on 23 September 2019 and, no payment being made, on 4 October 2019 filed an application seeking the appointment of liquidators in the BVI Commercial Court.

At the hearing of the winding up application, Kirkland argued that the BVI Court has no jurisdiction to make an order winding up a BVI company on the strength of a foreign arbitration award unless and until the award is registered in the BVI in accordance with the New York Convention. The Privy Council's decision in Vendort was to be distinguished as having decided only the position which prevailed prior to the coming into force of the Arbitration Act, which had changed the law. Vendort had concerned an application to set aside a statutory demand based on a debt arising under a foreign arbitration award made at a time prior to the coming into force of the Arbitration Act. It was argued in Vendort that the award needed to be registered under section 28 of the Arbitration Ordinance, the legislation which was then in force, before a statutory demand could be served in respect of it. That argument was rejected and it was held that it was not necessary for the award to be registered before the creditor could serve a statutory demand in respect of the debt created by it. Kirkland argued that the law had changed: under the old law, it submitted, it was not possible to register a foreign arbitration award under the New York Convention[1]. However, the Arbitration Act had changed that with the consequence that registration was now the required, and only method of enforcing an award. Daselina's application to wind up was therefore fatally flawed because the Award had not been registered in the BVI and the Court should not entertain the application.

The Judge rejected Kirkland's submissions. He held that seeking to appoint liquidators is not properly to be regarded as a method of enforcement (citing PT Ventures SGPS SA v Vidatel Ltd BVIHC (Com) 2015/0117 per Gerard Farara QC), that recognition under the New York Convention is not the only means by which the Court can take cognisance of the debt created by the award, and that registration of an award is not a necessary precondition to an application to wind up a BVI company on the strength of the debt created by the award. Accordingly, Daselina was entitled to file a winding up application without first registering the Award and, in the absence of a genuine dispute as to the debt credited by the Award, it had a proper basis for seeking the appointment of a liquidator.

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