BVI Commercial Court confirms jurisdiction to sanction pooling across multiple liquidations

Although pooling orders have previously been made by the BVI Court, until now, there has been no published judgment confirming that this is a form of relief available within the BVI. This has now been remedied in the judgment of the BVI Commercial Court in Re Durant International Corp (In Liquidation) & others handed down on 5 December 2019 (BVIHCM (COM) 2017/134).

The applications before the BVI Commercial Court were made by the liquidators of three BVI companies, Durant International Corp (“Durant”), Kildare Finance Ltd (“Kildare”) and MacDoel Investment Ltd (“MacDoel”). The Liquidators sought an order that the estates of Durant, Kildare and MacDoel to be treated as being and be notionally pooled for the purposes of (i) the payment of the liquidators’ fees and expenses, (ii) reporting, and (iii) distributions.

The background to the case was an extensive fraud, carried out between 1993 and 1996 by the then mayor of São Paulo in Brazil, Paulo Salim Maluf. Mr Maluf and members of his family were alleged to have accepted bribes and kickbacks at the expense of the municipality. Those funds were laundered as part of a coordinated scheme involving a web of interconnected transactions and a series of credits and debits between intermediaries including Durant and Kildare and MacDoel.

The Judge found that an analysis of the movement of monies between each of Durant, Kildare and MacDoel was likely to be a time-consuming exercise, with no practical advantage given, in particular, that the only creditors of all three companies were the City of São Paulo and the State of Brazil to whom it was a matter of indifference from which company a distribution comes. Accordingly, the Judge was satisfied that, if he had jurisdiction, this would be an appropriate case in which a pooling order might be made.

The Judge concluded that he did have jurisdiction to grant a pooling order: the BVI Court's jurisdiction in this regard is derived from Schedule 2 to the Insolvency Act 2003 (the "BVI Act"). Schedule 2 gives liquidators of BVI companies the power, inter alia, to make a compromise or arrangement with creditors or persons claiming to be creditors, or having or alleging that they have any claim against the company, whether present or future, certain or contingent, ascertained or not (Clause 2) and the power to compromise on such terms as may be agreed (a) calls and liabilities to calls, debts and liabilities capable of resulting in debts, and claims, whether present or future, certain or contingent, ascertained or not, subsisting or supposed to subsist between the company and any person; and (b) questions in any way relating to or affecting the assets or the liquidation of the company (Clause 3). These powers are mirrored in the powers conferred on liquidators in the standard form of order made in the BVI upon a winding up, invariably subject to the sanction of the Court, and were conferred on the liquidators in this case subject to the sanction of the Court by the terms of the Orders appointing them.

In reaching his decision on jurisdiction, the Judge followed the decision of the English Court of Appeal in Bank of Credit and Commerce International SA (No 3), citing in support the passage in the judgment of Dillon LJ [1993] BCLC 1490 (at p1510) where he confirmed that “…in a liquidation… there can be a departure from the pari passu rule if it is merely ancillary to the exercise of any of the powers which are exercisable with the sanction of the Court under Part I of Schedule 4 to the Insolvency Act 1986". Part I of Schedule 4 to the Insolvency Act 1986 is in materially identical terms to Schedule 2 of the BVI Act . In the instant case, the pooling arrangement would not in fact involve a departure from the pari passu principle since the same two creditors were creditors of the three companies concerned.

Drawing comfort from that, and from the fact that similar orders have been made in Jersey and the Cayman Islands, the Judge was content to make an order sanctioning the pooling arrangement.

Whilst the decision breaks no new ground, it is useful to have a reported decision in which the BVI Commercial Court confirms that, in an appropriate case, it will sanction a pooling arrangement.

Rosalind NicholsonPartnerT +1 284 852

Andrew ChissickSenior AssociateT +44 (0)20 7220 4994