Walkers Launches Compliance Services Offering

Walkers Compliance complements Walkers' legal, corporate and fiduciary services to deliver a one-stop-shop for clients looking to use the Cayman Islands jurisdiction for their business needs.

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Brexit

Following the result in the United Kingdom's EU referendum, Walkers has created a Brexit page dedicated to providing our clients relevant information about the jurisdictions in which we practise.

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Admissions April2019

Walkers Announces Admissions of 50th and 51st Caymanian Attorneys-at-Law

We are pleased to announce that Articled Clerks Gemma Cowan and Sophie Dibb have completed their legal training, both being called to the Cayman Islands Bar. 

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Court Grants Mandatory Arbitration Stay in Winding Up Proceedings

In the recent case of In the matter of China CVS (Cayman Islands) Holding Corp., Kawaley J of the Grand Court of the Cayman Islands (the "Court") provided some helpful clarity in determining the question of when the mandatory arbitration stay under Section 4 of the Foreign Arbitral Awards Enforcement Law (1997 Revision) ("FAAEL") would apply in the context of winding up proceedings.

Background

In October 2018, Family Mart China Holding Co., Ltd, a Japanese company (the "Petitioner"), petitioned to wind up China CVS (Cayman Islands) Holding Corp. (the "Company") on the just and equitable ground under Section 92(e) of the Cayman Islands Companies Law (2018 Revision) (the "Companies Law"). In the alternative, the Petitioner sought an order requiring Ting Chuan (Cayman Islands) Holding Corporation ("Ting Chuan") to sell its shares in the Company to the Petitioner pursuant to Section 95(3) of the Companies Law. Ting Chuan responded in November 2018 seeking orders, inter alia, that the petition be struck out, or in the alternative, that the petition be dismissed or stayed pursuant to Section 4 of the FAAEL and/or the inherent jurisdiction of the Court.

Section 4 of the FAAEL provides that: "If any party to an arbitration agreement, or any person claiming through or under him, commences any legal proceedings in any court against any other party to the agreement, or any person claiming through or under him, in respect of any matter agreed to be referred, any party to the proceedings may at any time after appearance, and before delivering any pleadings or taking any other steps in the proceedings, apply to the court to stay the proceedings, and the court, unless satisfied that the arbitration agreement is null and void, inoperative or incapable of being performed or that there is not in fact any dispute between the parties with regard to the matter agreed to be referred, shall make an order staying the proceedings."

The Decision

Kawaley J declined to strike-out the petition, but granted Ting Chuan's alternative application for a stay under Section 4 of the FAAEL, allowing the Petitioner the liberty to further prosecute the petition after the arbitrable disputes had been contractually adjudicated.

The stay was granted because Kawaley J found that the allegations raised in the petition related to the subject matter of the Amended and Restated Shareholders Agreement ("SHA"), which contained a broadly drafted mandatory arbitration clause. Kawaley J rejected the Petitioner's submission that the subject matter of the petition was not arbitrable because only the Court can grant relevant statutory relief, clarifying that there was a fundamental distinction between the question of whether the underlying disputes are arbitrable and the question of whether only the Court can grant the statutory relief of, inter alia, winding up. Although the case of Cybernaut Growth Fund LP (unreported, 23 July 2013, Jones J) was relied upon by the Petitioner in support of the proposition that "winding-up orders, supervision orders and orders for the appointment/removal of liquidators as class remedies…fall within the exclusive jurisdiction of the Cayman Court", Kawaley J accepted Ting Chuan's argument that the present case could be distinguished factually from Cybernaut because no winding-up order was actually sought. As the petition included matters which clearly constituted claims falling within the arbitration agreement that could be properly "hived off" for determination by the arbitration tribunal, the present proceedings could be stayed. Should the Petitioner succeed in the arbitration, it could then (if appropriate) (a) apply for leave to lift the stay of the present petition and leave to make appropriate amendments to the petition; and (b) by way of enforcement of or reliance upon the award, seek appropriate statutory relief from the Court on the grounds that the tribunal's findings supported the summary or conclusory finding that there had been a loss of confidence sufficient to justify a winding-up and/or alternative statutory relief.

Conclusion

The purpose of Section 4 of the FAAEL, as Kawaley J accepted, is "to give effect to the strong legal policy that where parties to a contract have agreed to exclusively refer a suite of disputes to arbitration, they should be held to their contractual bargain." In the present case, the Petitioner was unable to identify any authority which clearly supported the proposition that the mere fact that a litigant was seeking ultimate relief which could only be granted by a court rendered the underlying dispute non-arbitrable.

 

Remedying Defects in Compliance with the Companies Winding Up Rules

The Grand Court of the Cayman Islands recently delivered a judgment in In the matter of Pinnacle Global Partners Fund I LTD (FSD 231 of 2018 (RPJ), unreported 4 February 2019) where it adopted a pragmatic approach in exercising its discretion to allow the remediation of certain technical defects as to (non) compliance with the Companies Winding Up Rules, 2018 (the "CWR").

The case concerned a creditor’s winding up petition presented in respect of Pinnacle Global Partners Fund I LTD (the "Company"); Counsel for the Company argued that, as a preliminary issue, the petition was defective because no hearing date had been fixed and endorsed on it when it was filed and served as required by CWR, Order 3, rule 5 (and that such defects rendered the petition a nullity and that the Judge had no discretion to remedy such defects).

In his judgment, Justice Parker held that non-compliance of this nature with the CWR does not nullify the proceedings and therefore the Court does have the power to remedy procedural defects, but emphasized the importance of preventing injustice and prejudice from occurring when the Court exercises its discretion in this regard.

Whilst the case of HSH Cayman [2010 (1) CILR 114] was cited in confirming, amongst other points, that the Court is entitled to invoke its inherent jurisdiction to control its own processes in accordance with the CWR, amendments have since been made to the CWR that expressly provide the Court with the power to remediate technical defects as to (non) compliance with the CWR (without reliance on its inherent jurisdiction to do so).

In terms of the substantive hearing of the winding up petition, Justice Parker determined that no real evidence had been adduced which showed that the debt was disputed on bona fide grounds and made the winding up order accordingly.

Have you been true and full? A limited partner's right to information

The Grand Court of the Cayman Islands has recently released for publication a decision in Dorsey Ventures Limited (Plaintiff) and XIO GP Limited (Defendant) (FSD 38 of 2018, unreported 22 October 2018) which provides some welcome clarification regarding the extent of a limited partner's statutory rights to information in a Cayman Islands exempted limited partnership. The Court considered the rights of a limited partner to receive information in respect of the underlying partnership through section 22 of the Exempted Limited Partnership Law (2018 Revision) (the "ELP"):

"Subject to any express or implied term of the partnership agreement, each limited partner may demand and shall receive from a general partner true and full information regarding the state of the business and financial condition of the exempted limited partnership."

The matter concerned XIO Fund I LP (the "Fund"), an exempted limited partnership registered under the ELP. Dorsey Ventures Limited (the "LP") is a limited partner in the Fund and XIO GP Limited (the "GP") its general partner. The LP, now controlled by insolvency practitioners as professional directors, applied for an order that the GP deliver up certain information and documentation regarding the financial condition of the Fund with reference to the rights under section 22 of the ELP.

The application was made in the context of a wider dispute between two individuals as to the ultimate beneficial ownership of the LP, a dispute which is the subject of an ongoing arbitration in Hong Kong. There are substantive related proceedings before the Grand Court of the Cayman Islands.

In refusing the LP's requests and in response to the application, the GP argued that:

  1. Section 22 is subject to any express or implied term of the relevant Limited Partnership Agreement (the "LPA");
  2. Clause 15.2 of the LPA required the GP to maintain records of books and accounts;
  3. Clause 15.3 provided for the LP to receive the Fund's annual audited accounts and unaudited quarterly accounts by certain dates, or otherwise as soon as practicable;
  4. As a matter of construction, these contractual provisions expressly exclude the general right to receive information under section 22; and

Alternatively, a term should be implied to this effect to give business efficacy to the LPA (applying Marks and Spencer Plc v BNP Paribas Securities Services trust Co (Jersey) Ltd [2016] AC 742 ("M&S v BNP").

The Court ultimately made the order sought by the LP. In doing so Justice Mangatal held that:

  1. The relevant clauses in the LPA provide for the maintaining of records of books and accounts and the furnishing of that information;
  2. When read in conjunction with section 21 of the ELP (which deals specifically with 'accounts'), the right to receive "true and full information" under section 22 plainly contemplates a broader class of information than merely audited and unaudited accounts;
  3.  As a result, a reasonable man (with background knowledge of the parties) could not have understood the parties to have intended to exclude the rights under section 22, absent express language in the LPA to that effect; 
  4. M&S v BNP provides that a term can only be implied if, without the term, the contract would lack commercial or practical coherence. That was not the position here. The LPA could not properly be said to lack commercial or practical coherence and could not be construed as excluding the broad right to information under section 22. 

The judgment makes it clear that any fund wanting to restrict or exclude the LP's right to receive "true and full information" regarding the state of the partnership will have expressly to do so in the LPA.

First Walkers Guernsey Equality Awareness Series Event a Success

More than 70 attendees heard from Managing Partner Louise Hall and Senior Counsel Sarah Ash last week at Walkers’ Equality Awareness Series on Human Rights and Equality.

The event, which was held in association with the States of Guernsey, was the first in a four part series of Walkers events, aimed to raise awareness and start the conversation amongst local employers around human rights and equality, unconscious bias and the promotion of diversity and inclusion in the workplace.

Attendees received a progress update on the ERO proposals which The Committee for Employment & Social Security is developing for Guernsey and practical advice on how employers can avoid and mitigate unconscious bias in the workplace.

Senior Counsel Sarah Ash said:

"We are delighted that the first event went so well and that the feedback has been so positive from attendees. The topic of diversity and inclusion in the workplace has received a lot of media attention in recent months and, for many employers, investing time and energy in cultural change has become a priority to ensure they attract and retain the best talent and maximise their organisation's potential. We wanted to provide some insight into how employers can start to make a difference and tackle unconscious bias in their workplace, which will not only result in huge benefits for their own organisations but will also have a positive impact for Guernsey. We felt that this session was the perfect introduction to our Equality Awareness series and we are now looking forward to delivering more detailed training on disability, reasonable adjustment and discrimination."

The invitation to the next event in the Walkers series on "Disability: What it means in practice for Employers" will be sent out this week. More information is available via the Walkers website.

Jersey & Guernsey Funds are Future-Proofed for UK and EU Access – However Brexit Unfolds

Jersey's and Guernsey's status as pre-eminent international financial centres for investing in the UK and Europe post-Brexit has been reaffirmed following the new Memorandum of Understanding ("MoU") for each jurisdiction signed on 12 March 2019.

The separate MoUs between the UK Financial Conduct Authority (FCA) and each of the Jersey Financial Services Commission ("JFSC") and the Guernsey Financial Services Commission ("GFSC") provide certainty that Jersey and Guernsey domiciled funds will still have access to UK investors and capital post-Brexit, once EU law ceases to apply in the UK. Jersey and Guernsey funds will be able to continue marketing to UK investors using the private placement regime.

In addition, Jersey and Guernsey domiciled funds will continue to have access to European investors in the same way as usual through the National Private Placement Regimes ("NPPRs") of EU Member States. As each of Jersey and Guernsey is a 'third country' to the EU, NPPRs provide a quick, efficient and low-cost alternative to the full Alternative Investment Fund Managers Directive (AIFMD) passport. These bilateral agreements between the JFSC or the GFSC and EU Member States' regulators mean that Jersey and Guernsey domiciled funds can be marketed into the EU through a tried and tested regime. Brexit will not impact upon these agreements.

This demonstrates that Jersey and Guernsey continue to provide stability, confidence and certainty for managers as leading funds jurisdictions during uncertain times.

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