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BVI: Privy Council Considers Approach to Winding Up in "Deadlock" Cases

The Judicial Committee of the Privy Council has handed down judgment in the case of Chu v Lau  [2020] UKPC 24 (on appeal from the British Virgin Islands) on 12 October 2020. Walkers' Partner Rosalind Nicholson and Associate Renell Benjamin appeared for the successful Appellant, Mr Lau. The Board's decision is an important one and brings welcome clarity to the approach which the Court will adopt in considering whether a shareholder is entitled to the remedy of winding up on the just and equitable ground. Since BVI law is similar to English law in this area, the decision is likely to be of interest to English practitioners as well as to BVI practitioners dealing with shareholder remedies.

Chu v Lau concerned a shareholders dispute between the two equal shareholders in a BVI company, Ocean Sino Limited ("Ocean Sino"), which was operated as a quasi-partnership between them. Over time, the relationship between the two partners deteriorated and, following unsuccessful attempts to separate their business interests,  Mr Lau ultimately filed an application in the BVI Commercial Court to wind up Ocean Sino on the just and equitable ground. The trial Judge (Justice Roger Kaye QC (Ag.)) found that that there was an irretrievable deadlock and breakdown in relations between Mr Lau and Mr Chu, at the time the proceedings had been commenced and which continued at the date of the trial and made an Order winding up Ocean Sino. Mr Chu appealed to the Eastern Caribbean Court of Appeal ("ECCA") who allowed the appeal and overturned Justice Kaye's Order. The ECCA also refused Mr Lau leave to appeal to the Privy Council. However, having granted Special Leave and expedited Mr Lau's Appeal, the Judicial Committee of the Privy Council allowed the Appeal and reinstated the Order of Justice Kaye.

The Board's advice addresses a number of issues which frequently arise on a shareholder's application to wind up a BVI company on the just and equitable ground, including the importance of the applicant's responsibility for the breakdown in the relationship between the shareholders and what is to be deemed an "alternative remedy" which renders the applicant's pursuit of a winding up unreasonable. In particular, Lord Briggs and Lady Arden in separate speeches, considered the question of deadlock between the shareholders as a grounds for just and equitable winding up. Lord Briggs identified "functional deadlock", that is a situation where the shareholders are unable to co-operate in the management of the company with the result that the company ceases to function as board or shareholder level, as proving grounds for winding up, whether or not the company is a quasi-partnership. By contrast, however, an irretrievable breakdown of the relationship between the shareholders such that the trust and confidence is grounds for winding up only where the relationship is one of quasi-partners and as such subject to equitable considerations due to the nature of that relationship.

Decade-long Saad litigation settled between AHAB and Grant Thornton Defendants

After over 11 years of litigation, Walkers Cayman is pleased to announce that Walkers' clients, the Grant Thornton Defendants, have reached a confidential settlement with AHAB which results in their release from the AHAB v. Saad Investments and Others proceedings in the Cayman Islands.

The proceedings were commenced in the Grand Court on 24 July 2009. The trial took over a year and was heard by Chief Justice Smellie from July 2016 to July 2017. In his judgment of over 1,300 pages, which was handed down on 31 May 2018, the Chief Justice dismissed all of AHAB's claims against the GT Defendants. AHAB appealed that judgment and its appeal was heard in May and June 2019. No judgment in the appeal has been delivered.

The case continues against the other Defendants in the case.

Walkers is delighted with this outcome and is proud to have been involved in an such extraordinary case from commencement to conclusion. We are also privileged to have worked alongside the exceptional team from Grant Thornton Cayman and Grant Thornton UK LLP.

Walkers Expands London Office with the Addition of Three Partners

Walkers is pleased to announce the partner level hires of Tatziana Paraguacuto-Maheo and Matthew Bloomfield, who will join Walkers industry-renowned Cayman Islands investment funds practice in London. Walkers is also pleased to announce that former BVI Managing Partner, Patrick Ormond, has relocated to take up the position of partner in the London office's Finance & Corporate practice.

Tatziana has almost 20 years’ experience and has been recognised as one of the top 50 women in hedge funds by the Hedge Fund Journal. Throughout her career Tatziana has acted for major financial institutions, investment funds and asset managers based in London, New York and Hong Kong, including the launch of many of the world’s largest emerging managers. Tatziana's expertise focuses on the legal aspects affecting funds including launch of new products, restructurings, acquisitions as well as regulatory, contentious and governance issues.

With over a decade of offshore legal experience, Matt specialises in Cayman-domiciled hedge funds and private equity funds. Matt regularly works with the investment and asset management teams of leading law firms in Europe and North America, advising a wide range of industry participants including global financial institutions, asset managers and intermediaries, and on all aspects of an investment fund's life cycle.

Jack Boldarin, London Managing Partner comments: "We are excited that Tatziana and Matt have joined our team. Our Investment Funds practice is a cornerstone of Walkers' legal offering and the presence of these market leaders further enhances our best in class legal offering for our European client base and beyond."

Patrick, who joined Walkers in 2018, brings significant transactional and BVI experience having previously worked in the banking and finance team at Macfarlanes in London and in the BVI for the past eight years. Patrick has a broad corporate and finance practice, advising financial institutions, corporates, funds and investors on international finance and corporate transactions.

Jack Boldarin continues: "We are very pleased that Patrick has agreed to join our team. His expertise and experience will enhance our market leading BVI law team based in London. This hire also demonstrates Walkers' commitment in maintaining a pre-eminent global BVI practice in the vital London market."

Walkers London based Cayman Islands and BVI team (who provide time zone sensitive Cayman and BVI law support to clients across the EMEA region) is ranked as a Band 1 Cayman law firm by both of Chambers and Legal 500 (2020 editions) and as a Band 1 BVI law firm by both of Chambers and Legal 500 (2020 editions). Walkers does not practise English law and instead works alongside leading English law firms to provide integrated offshore and onshore support.

Walkers Advises Spirit Airlines on US$850 Million Senior Notes Offering Backed by Loyalty Scheme and Brand IP

Walkers acted as Cayman Islands counsel to Spirit Airlines, Inc. ("Spirit") in connection with an offering of $850 million aggregate principal amount of 8% senior notes due 2025 by Spirit's newly-formed, wholly-owned Cayman Islands subsidiaries Spirit IP Cayman Ltd. (the “Brand IP Issuer”) and Spirit Loyalty Cayman Ltd. (the “Loyalty IP Issuer” and, together with the Brand IP Issuer, the “Issuers”). The notes are guaranteed by Spirit and two additional newly-formed Cayman Islands subsidiaries of Spirit. The notes are secured by Spirit’s customer loyalty programs (including its $9 Fair Club program and its Free Spirit loyalty program) and brand intellectual property. Citigroup, Deutsche Bank Securities and Morgan Stanley joined Barclays as joint lead bookrunners for the deal, with Barclays acting as sole structuring agent.

The notes offering was structured through bankruptcy-remote Cayman Islands entities and has allowed Spirit to tap into its high-value loyalty programs to raise capital through its own private offering rather than participating in the U.S. Treasury’s secured loan program under the CARES Act.

Spirit is committed to delivering the best value in the sky while providing an extraordinary guest experience. Spirit is the leader in providing customizable travel options starting with an unbundled fare.

Walkers collaborated with US law firm Davis Polk & Wardwell LLP and the Walkers team was jointly led by Cayman Islands office managing partner Tim Buckley and fellow partner Paige Gaston-Thiery.

Walkers Acts on Delta Air Line's US$9 Billion Loyalty Programme Financing

Walkers acted as Cayman Islands counsel to Goldman Sachs Lending Partners LLC in the world's second multi-billion dollar financing using an airline's loyalty programme as security. The matter involved US$6 billion of senior secured high yield bonds and US$3 billion of senior secured term loans to SkyMiles IP Ltd., an indirect wholly-owned subsidiary of Delta Air Lines, Inc. (“Delta”) and to Delta itself. The financing is secured by Delta's loyalty program, SkyMiles, and guaranteed by three other wholly-owned Delta subsidiaries.

According to On Point Loyalty's research, Delta's SkyMiles loyalty programme ranks as the most valuable airline rewards programme globally, with an estimated value of approximately US$25.9 billion.

Barclays, JP Morgan and Morgan Stanley joined Goldman Sachs to act as joint lead arrangers and multiple institutional banks, including Standard Chartered and Wells Fargo, acted as joint bookrunners in the transaction. The Delta deal follows in the footsteps of a the world's first financing transaction utilising a US airline's loyalty program, on which Walkers also acted as Goldman's Cayman counsel.

Walkers was instructed by US law firm Milbank and was led by Cayman Islands partners Philip Paschalides, Barnaby Gowrie and Lucy Frew with Hong Kong partner Shamar Ennis, senior counsels Sarah Humpleby and Brett Basdeo and associates Arleth Ebanks, Shanine Felix, Alexandra Franklin and Christopher Carroll also acting on the matter.

Walkers Welcomes Partner Shamar Ennis to the Hong Kong office

Walkers is pleased to announce the addition of Shamar Ennis as a partner in its Finance and Corporate group in Hong Kong.

Shamar relocates from the Firm's Cayman office, having previously been seconded to Hong Kong for two years in 2014.

Shamar has a broad range of experience in corporate and finance advising on Cayman Islands and British Virgin Islands law aspects of leveraged and acquisition financings, structured finance, fund finance and general corporate lending transactions.

"We are delighted to have Shamar back in Hong Kong," said Hong Kong Managing Partner Andy Randall. "She will provide additional firepower to our quality Tier 1 Finance practice, providing solutions for clients in the region. We are seeing steady growth and the increasing use of more sophisticated financial instruments and structures in Asia and Shamar's work with US, Latin America and other financial institutions has provided her with an in-depth understanding of some of the more innovative and complex structures1 being used in North America."

Shamar Ennis adds, "I am excited to be back in Asia and to reconnect with clients and contacts. It is such a vibrant and thriving financial hub and I look forward to supporting its continued growth and evolution over the coming years."

1 Shamar was part of a team who advised Goldman Sachs as lead arranger on two multi-billion financings, the first ever financing backed by a US airline loyalty programme and at the time the largest ever capital markets offering by an airline (view here).