[co-author: Ernest Bickley, Paralegal]
British Virgin Islands (“BVI”) companies are widely used as corporate vehicles for joint ventures in Asia, especially at their pre-listing stage. There are over 450,000 active BVI companies set-up by users around the world. From time to time, shareholder disputes arise out of the affairs of these BVI vehicles, which often hold valuable businesses in Asia. Substantive trials lasting weeks over disputes between Asian shareholders are not uncommon in the BVI Commercial Court.
Covid-19 has posed challenges to effective case-management in the BVI as elsewhere. As disputes before the BVI Commercial Court will invariably have international elements, the judiciary and legal practitioners have cooperated to develop practical solutions to minimise the disturbance caused by the pandemic.
The BVI courts expect litigants to cooperate expeditiously to arrange remote trials through video conferencing facilities. Witnesses based overseas are not required to travel to the BVI and may give evidence remotely at a ‘neutral’ venue or a law firm that fulfils the requirements of the court.
This article shares Conyers’ practical tips drawn from its recent experience of successfully conducting a remote trial by Zoom in King Bun Limited & Ors v Lau Man Sang, James & Ors BVIHCM 2017/0086.
Conyers acted for the minority shareholders of Vanway International Group Limited (the “Company”), which ran a substantial pharmaceutical business in the PRC. The clients successfully pursued a derivative action against all directors of the Company for the sale of its core pharmaceutical business to the majority shareholder and chairman at a gross undervalue.
The First Sitting of the trial took place in the traditional way from 19 November 2019 to 5 December 2019.
The Second Sitting of the trial from 20 July 2020 to 31 July 2020 coincided with the pandemic. International travel was impractical as overseas travellers to the BVI were subject to a mandatory 14-day quarantine and they faced further quarantine on the return home. It was not therefore feasible for the litigants, factual and expert witnesses, interpreters and the Lead Counsel to attend a physical hearing in the BVI. The Second Sitting of the trial was held by video conference.
Conyers coordinated the attendance of parties based across three continents at the remote trial. The parties were represented by London silks who conducted cross-examination from their chambers in London. Wallbank J attended the trial remotely from the BVI while the witnesses testified by way of video-link from Hong Kong. To adhere to the BVI court’s requirements for neutrality, a local barrister was instructed to be physically present and supervise the giving of oral evidence in Hong Kong.
To accommodate the witnesses based in Hong Kong, the BVI Court helpfully adjusted its sitting-hours to 08:00 to 13:00 (BVI time) / 20:00 to 01:00 (Hong Kong time).
- Get Necessary Permission
The cross-border giving of evidence by video-link from a witness who is in the PRC is only allowed if the consent and approval of the requisite Chinese authorities is obtained in advance. However, the procedure is complex and likely to be lengthy. The BVI Commercial Court, the British, Foreign & Commonwealth Office, the Chinese Ministry of Foreign Affairs and the Supreme People’s Court are required to be consulted. The time needed to complete this process is difficult to estimate and it will depend upon the nature and circumstances of the case. It is advisable for the parties’ legal representatives to plan ahead and file the requisite requests for consent as soon as possible if there is no alternative to taking evidence from a witness in the PRC.
- Practice Makes Perfect
Using Zoom or other similar services means it is essential to check thoroughly the quality of the Wi-Fi, audio, camera and venue to create the optimum environment for the giving of oral evidence. Several practice runs were conducted to ensure that the trial went smoothly and that the flow of cross-examination was not interrupted or delayed by technical issues. This is crucial for the Leading Counsel to make an impact in the proceedings and enable the Court to make the best factual findings. If done correctly, trial by videoconference can achieve the intensity of the most heated courtroom exchanges.
Following the onset of Covid-19, the BVI Commercial Court has been quick to adopt remote trials as an effective alternative to physical hearings. The technological infrastructure for conducting remote hearings is up-and-running and functioning efficiently. Looking ahead to a post-Covid-19 world, it is quite possible that remote hearings will be allowed as an option for appropriate cases, enabling litigants based in Asia and worldwide to give evidence remotely even after quarantine requirements are relaxed.
First published in Asian Legal Business Magazine, October 2021 Issue