Walkers Legal Internship Programme nurtures future talent

Walkers is delighted to announce that its Legal Internship Programme ran for three weeks, from 17 July to 4 August.  Hosting 10 students this summer, the programme was designed to provide these aspiring legal professionals with an opportunity to gain hands-on experience in a leading global law firm.

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Jan Golaszewski joins Walkers team in London as Insolvency & Dispute Resolution partner

Leading offshore Insolvency & Dispute Resolution lawyer Jan Golaszewski has joined Walkers team in London in a lateral partner hire from another offshore law firm in the City.

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What can we learn from recent enforcement actions in the Cayman Islands?

Walkers' regulatory partners Lucy Frew and Ian Mason consider the learning points for financial services providers (FSPs) from recent enforcement actions by Cayman regulatory bodies.

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Walkers announces 29 senior legal and professional services promotions

Walkers, the international financial services firm, is boosting its legal and professional services teams with 28 senior promotions effective from 1 July.

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Enforcement of arbitral awards: Bermuda, BVI, Cayman Islands, Guernsey, Irish and Jersey law

As the use of arbitration as a means of dispute resolution has grown in popularity, there has been a marked increase in the need for arbitral awards to be recognised and enforced in offshore jurisdictions.

The international legal regime for the recognition and enforcement of arbitral awards is based on the Convention on the Recognition and Enforcement of Foreign Arbitral Awards 1958 (the "New York Convention").  This is complemented by the UNCITRAL Model Law for Arbitration (the "UNCITRAL Model Law"), which seeks to streamline the procedure and conduct of arbitrations between states, including those which are signatories to the New York Convention. 

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All of the key offshore jurisdictions are parties to the New York Convention and have adopted the UNCITRAL Model Law into domestic law, albeit with some modifications, meaning that enforcement of foreign arbitral awards in those territories will often be straightforward. 

Where the New York Convention applies, the offshore court may only refuse to grant an order for the recognition and enforcement of an arbitral award if they are satisfied that one or more of the following circumstances apply:

  1. that a party to the arbitration agreement was under some form of incapacity;
  2. the arbitration agreement was not valid;
  3. a party was not given proper notice of the appointment of the arbitrator or of the arbitration proceedings or was otherwise unable to present their case;
  4. the award deals with a difference not falling within the terms of the arbitration agreement or contains decisions on matters that are beyond its scope;
  5. the composition of the panel or the arbitral procedure was not in accordance with the agreement of the parties or the law of the country where the arbitration took place; or
  6. the award is not yet binding on the parties or has been set aside or suspended by a competent authority;
  7. the award is in respect of a matter which is not arbitrable under the laws of the jurisdiction where enforcement is sought; or
  8. enforcing the award would be contrary to public policy in the jurisdiction where enforcement is sought.

In the case of an award from a non-New York Convention jurisdiction, the court may refuse to grant an order for the recognition or enforcement of an arbitral award for the same reasons and additionally if for any other reason the court considers it just to do so. 

Once an award has been recognised by a court in the relevant offshore jurisdiction, it can be enforced in the same manner as a judgment or order of the local court.

Cayman Inspectorship Under the Microscope

In the matter of Avivo Group (Cause No. FSD 145 of 2022 (RPJ)), Walkers, instructing Ms Clare Stanley KC of Wilberforce Chambers, acted as Cayman Islands counsel to Avivo Group (the "Company") in respect of its successful opposition to Agricultural Development Fund's ("ADF") motion for the appointment of inspectors pursuant to Section 64 of the Cayman Islands Companies Act (as amended) (the "Companies Act").

On 16 December 2022, the Honourable Justice Parker handed down his decision, which, given the paucity of Cayman Islands case law authorities regarding the exercise of Section 64 of the Companies Act, provides useful guidance on the principles to be applied by the Grand Court of the Cayman Islands (the "Cayman Court") in determining whether it is appropriate to make an order for the appointment of inspectors for the purposes of examining the affairs of a company.

In summary, Parker J derived the following non-exhaustive principles to be applicable to the exercise to be undertaken by the Cayman Court when considering an application for the appointment of inspectors pursuant to Section 64 of the Companies Act:

  1. the appointment of inspectors will not be made "as of right" upon the application of a dissentient shareholders (see In re Mercantile Finance), nor is it appropriate for an examination to be ordered "merely to satisfy disgruntled shareholders that there is no legitimate cause for complaint";

  2. whether it is appropriate to appoint inspectors will depend upon the facts of the particular case: "the determination by the [Cayman] Court as to whether the facts in a particular case are sufficiently serious to warrant such an order and whether the [Cayman] Court should exercise its discretion to appoint inspectors is a particularly fact-sensitive issue, which will vary depending on the circumstances";

  3. the appointment of inspectors is "a serious step" and the Cayman Court should "balance the competing interests of the parties and exercise its discretion in a principled way". Parker J noted that the appointment of inspectors can have serious reputational implications on the company and the applicant will need to show they have a "good reason" for requiring an investigation;

  4. an order for the appointment of inspectors (on a contested basis) should only be made where there is "a strong likelihood, well founded on a solid and substantial basis, of serious misconduct and/or mismanagement, or concealment" relating to the conduct, management and/or operation of the company based on "undisputed facts". A mere “feeling” that something is wrong or that there might be something that is dishonest or improper will not suffice; and

  5. relevant considerations will include whether:
  • the applicant has sought an explanation (of the issues the subject of the proposed inspection) from the directors of the company and such explanation has not been forthcoming and/or the directors have concealed facts from the shareholders;
  • the application is being pursued for a genuine reason (i.e. not for a collateral or improper purpose);
  • some useful object will be achieved by the appointment of inspectors; and
  • the applicant has some other available remedy.
A fuller analysis of the scope and application of Section 64 of the Companies Act and Parker J's instructive judgment will be forthcoming.

Winding Up and Arbitration Clauses: A timely reminder that he who hesitates is lost

In Sian Participation Corp. (In Liquidation) –v- Halimeda International Limited BVIHCMAP2021/0017 (“Sian”), the Eastern Caribbean Court of Appeal again had occasion to consider (amongst a number of other things) the interrelationship between an arbitration clause in a loan agreement and the Court’s jurisdiction to appoint liquidators to a company under the Insolvency Act 2003. The judgment, in which the Court of Appeal upheld the Order of Wallbank J appointing liquidators, serves as a useful reminder that a party wishing to invoke an arbitration clause as a basis for a stay of winding up proceedings against it, must act promptly in inviting the Court to refer the dispute to arbitration or risk losing the opportunity.

The creditor, Halimeda International Limited (the “Creditor”) applied for the winding up of Sian Participation Corp. (the “Company”), on the grounds of insolvency. The debt arose under a loan agreement made between the Creditor and the Company on 7th December 2012 (the “Loan Agreement”). The Loan Agreement contained an arbitration clause (the “Arbitration Clause”) which required any dispute arising from the Loan Agreement to be resolved through arbitration. The loan fell due for repayment by 31st December 2018 but the Company did not repay the debt. The Creditor filed its application on 29th September 2020. On 27th November 2020, the Company filed a Notice of Opposition denying that the debt was currently due and payable. That Notice of Opposition was amended on 19th and 23rd March 2021, but, as originally filed, made no reference to the Arbitration Clause or any reference to arbitration. On 30th January 2021, the company filed an application to strike out the winding up application. It was in this application that arbitration was first advanced as an issue. Neither party made a formal request to the Court that it refer the matter to arbitration.


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Tales from the Oriente: the first appointment of restructuring officers in the Cayman Islands

Walkers acted as Cayman Islands counsel to Oriente Group Limited (the "Company”) in respect of its successful petition for the appointment of Mr Kenneth Fung of FTI Consulting (Hong Kong) Limited, Mr Andrew Morrison and Mr David Griffin of FTI Consulting (Cayman) Ltd as joint restructuring officers (the "Joint Restructuring Officers") pursuant to Section 91B of the Cayman Islands Companies Act (as amended), being the first petition under the new restructuring officer regime, which came into force on 31 August 2022.


The Company is the parent company of a group (the "Group") which operates a leading financial technology platform providing alternative sources of credit to traditional retail banks for the unbanked and underbanked population of Southeast Asia, with more than 8 million registered users. The Group's performance was significantly affected by the impact of the COVID-19 pandemic on the Southeast Asian economy and the platforms' users, which resulted in a substantial increase in non-performing (consumer) loans, as well as other factors impacting the global capital markets and investor community including, but not limited to, US-China tensions, the Russia-Ukraine war and interest rate increases by central banks.

Notwithstanding the Company engaging in discussions with its creditors regarding a proposed restructuring of its financial liabilities (as well as more broadly, the restructuring of certain Group liabilities due to third party lenders) from at least May 2022, on 20 September 2022, upon the expiry of the deadline for payment under two statutory demands dated 29 August 2022, two creditors (the "Objecting Creditors") presented a petition to the Grand Court of the Cayman Islands (the "Grand Court") (which was served on the Company on 27 September 2022) seeking, amongst other things, the winding up of the Company on the grounds that the Company is unable to pay its debts as defined in Section 93(a) of the Companies Act and is therefore insolvent (the "Winding Up Petition").

On 21 October 2022, the Company presented a petition to the Grand Court seeking the appointment of the Joint Restructuring Officers pursuant to Section 91B of the Companies Act on the grounds that the Company: (i) is unable to pay its debts as defined in Section 93(a) of the Companies Act and is therefore insolvent; and (ii) intends to present a compromise or arrangement to its creditors (or classes thereof) pursuant to Section 86 and/or 91I of the Companies Act, the law of a foreign country or by way of consensual restructuring (the "RO Petition").

Immediately before the hearing of the RO Petition, the Company was made aware that, notwithstanding the automatic stay on the commencement or continuation of proceedings upon the presentation of the RO Petition pursuant to Section 91G of the Companies Act (as discussed further below), on 10 November 2022, the Objecting Creditors presented a petition to the High Court of the Hong Kong Special Administrative Region (the "Hong Kong Court") seeking, amongst other things, the winding up of the Company (on substantially similar grounds advanced in the Winding Up Petition) (the "Hong Kong Winding Up Petition").


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BVI Beneficial Ownership - Economic Substance Reporting Regime

The Beneficial Ownership Secure Search System (Amendment) (No.2) Act, 2021 (“Amendment Act”) was gazetted in the BVI on 31 December 2021 and came into force on 1 January 2022. The Amendment Act amends the BVI’s Beneficial Ownership Secure Search System Act 2017 (“BOSS Act”).

The BOSS Act is the BVI’s key legislation relating to the confidential reporting of beneficial ownership (“BO”) information to regulators. Since the BOSS Act’s implementation in 2017, it has also come to include economic substance (“ES”) information reporting in connection with the Economic Substance (Companies and Limited Partnerships) Act 2018 (the “ESA”). The BOSS Act also covers the circumstances in which BO and ES information may also be spontaneously exchanged with overseas competent authorities under the OECD substantial activities standard and related guidance (“OECD Guidance”).


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