Free standing relief: Black Swan orders


It has been almost 3 years since the substantial change to BVI law, brought about by the Black Swan case. Phillip Kite and Claire Robey set out where BVI law now stands in this important area.

Prior to 2010 freezing injunctions in the British Virgin Islands were only available ancillary to a substantive domestic cause of action against the respondent. It was not possible to seek an injunction ancillary to foreign proceedings. This was a result of a restrictive interpretation of Lord Diplock’s speech in The Siskina. In that case, the House of Lords was deciding a case where the defendant was not within the court’s in personam jurisdiction and it was therefore a case concerning whether an injunction could form the basis for the grant of service outside of the jurisdiction. The English courts have never had to decide in the years since The Siskina whether it had jurisdiction to grant a freezing injunction against a defendant within the territorial jurisdiction in aid of foreign proceedings. This was due to the passing of (the English) section 25 of the Civil Jurisdiction and Judgments Act 1982 which gives the court express power to make orders in aid of foreign proceedings.

The restrictive British Virgin Islands approach was overturned by the High Court, Commercial Division in Black Swan Investment ISA v Harvest View Limited. There the Commercial Court held that it was within its discretion to grant a stand alone freezing injunction in support of foreign proceedings where the respondent was within the in personam jurisdiction of the British Virgin Islands court. The court followed the English decision of Channel Tunnel Group v Balfour Beatty Ltd and held that The Siskina did not prevent a court from granting an interlocutory injunction ancillary to a claim for substantive relief to be granted by a foreign court or arbitral body....

Please see full article below for more information.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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