The purpose of an anti-suit injunction is to restrain respondents from commencing or continuing proceedings in another jurisdiction. Anti-suit injunctions are an important, and frequently required, judicial tool within the BVI. The growing number of international companies registered in the BVI has resulted in a corresponding increase in the number of BVI matters involving multiple jurisdictions. The recent BVI Court of Appeal decision in (1) Kenneth M. Krys (2) Joanna Lau (as Joint Liquidators of Fairfield Sentry Limited, in Liquidation) v Stitching Shell Pensioenfonds [HCVAP 2011/036] considers the requirements for obtaining an anti-suit injunction in the BVI.
Fairfield Sentry Limited (‘Sentry’) is a BVI incorporated investment fund, now in liquidation under the BVI Insolvency Act 2003, which prior to its winding up had invested approximately 95% of its assets in Bernard L Madoff Investment Securities LLC. Stitching Shell Pensioenfonds ('Shell') is a Netherlands-based pension fund which had subscribed for shares in Sentry to the tune of US$63million.
Once news of the Madoff fraud broke (in December 2008), and in the face of a redemption request made by Shell in December 2008 which had not been honoured by Sentry, Shell applied to the District Court in Amsterdam (the ‘Dutch Court’) for, and obtained, a pre-judgment conservatory “garnishment order” over monies held in Sentry’s Citco Bank account in Dublin (Citco is a global financial institution with headquarters in Amsterdam). The order was made to a limit of US$80million and caught some US$67million. The basis of Shell’s application was that, as an unredeemed investor, it was essentially Sentry’s creditor.
On 16 March 2009, Shell obtained a further pre-judgment garnishment order on the grounds that additional funds had been received into the Dublin Account.
On 23 April 2009 an application to appoint liquidators was made by Sentry in the BVI court and liquidators were appointed on 21 July 2009. Shell submitted proof of its claim to redemption proceeds under the BVI liquidation on 5 November 2009.
On 19 March 2010 Shell commenced proceedings before the Dutch Court for the recovery of US$45m invested, together with interests and costs, and alternatively for damages for misrepresentation and/or breach of warranty. Sentry, having tried, and failed, to set aside the garnishment orders in the Dutch courts, applied to the BVI Commercial Court on 8 March 2011 to restrain Shell from continuing the Dutch proceedings by way of an anti-suit injunction. This article is concerned with the BVI (and subsequent Court of Appeal) decision.
On 12 July 2010 Sentry commenced proceedings in Ireland seeking recognition of the BVI liquidation and declarations that Sentry's liquidators were entitled to the monies in the Citco account and that the Dutch garnishment orders should not be recognised in Ireland. The decision in Ireland, given on 28 February 2012, essentially failed to advance the matter as it essentially recognised both the BVI liquidation and the Dutch garnishment orders.
Sentry's application for an anti-suit injunction was refused at first instance. The court stated that the main issue was “whether Shell had by claiming in the liquidation had, in essence, submitted to the BVI Court's jurisdiction to the extent that it was obliged to abandon any attempts to achieve security for its assets of Sentry in another jurisdiction”. The trial judge concluded that, in the absence of any element of sharp practice, there was no reason to prevent Shell from seeking remedies in the Dutch Court. The question of whether Shell had claimed in the BVI liquidation was, according to the court, de minimis.
The appeal was grounded in the fact that the Dutch proceedings enabled Shell to seek remedies which would detrimental to the general body of Sentry’s creditors. The argument was that the trial judge ought to have restrained Shell from pursuing its proceedings in the Netherlands until it had decided whether or not to prove in or take any benefit from the BVI liquidation.
The Court of Appeal judge held that “the main thrust of Sentry’s case is that the trial judge ought to have adopted a ‘universalist’ rather that what it has called a ‘territorialist’ approach to the effect and reach of a BVI liquidation and the assets subject to it”. While the original trial judge had stated that an element of sharp practice was required in order to grant an anti-suit injunction, the Court of Appeal judge held that the remedy is available “where the conduct of the claimant by pursuing the foreign proceedings would interfere with the ‘due process of the court’ or where it is required to protect the policies of the local forum”.
Sentry’s appeal was therefore allowed and the Court of Appeal held:
- By submitting its proof of claim in the BVI liquidation, Shell had submitted to the jurisdiction of the BVI courts;
- Shell ought not to be permitted to pursue the Dutch proceedings as the pre-judgment garnishment orders may allow it a priority over the general body of Sentry’s creditors. To allow Shell to continue its Dutch action while simultaneously participating in the statutory scheme, where the assets would be distributed equally, would allow them “to have it both ways”; and
- The original trial judge had erred in affording jurisdiction to the Dutch court, a decision based almost entirely on the fact that the Respondent was a Dutch company. The Court of Appeal held that the only basis for the Dutch court's jurisdiction was the existence of the garnishment orders, which supports the view that Shell's motive in applying for the injunction was to gain a priority over other creditors.
The importance of the Court of Appeal’s decision in this case lies in the fact that there is almost always a multijurisdictional element in BVI cases. Consequently, the potential for claimants to engage defendants in concurrent foreign proceedings is high. Anti-suit injunctions are therefore an important and effective tool in ensuring that disputes properly heard in the BVI remain in the BVI.
While the BVI Commercial Court had originally determined that an element of “sharp practice" was required, the Court of Appeal overturned this to afford BVI proceedings greater protection, adopting a more “universalist” perspective. Although there is always the risk, as with any court order, that such an injunction will be ignored, any party choosing to do so will be in contempt of the BVI court and will effectively bar themselves from doing business in, or dealing with assets already within the jurisdiction of, the BVI.