That was the question before
the U.K. Supreme Court in the case of Prest v Petrodel Resources Limited &
Others and answered in the negative in the much awaited and by now heavily
analysed judgment issued in June of this year and reported at  UKSC 34.
In the end the Supreme Court used trust law rather than company law to hold
that seven disputed properties in matrimonial proceedings were in the
particular circumstances of the case, held on trust for the husband (even though
held in fact by his companies). While the Court did not resort to
piercing the company veil...
Last week the U.S.
Chamber of Commerce Institute for Legal Reform issued a report in which it called for the regulation of entities offering funding
for litigation to those who cannot afford the costs of taking their claim to
the Courts. The Chamber has been a
critic of third party funders for some time, offering the opinion that “third-party investments in litigation represent a clear
and present danger to the impartial and efficient administration of civil
justice in the United States.” I
would like to know on what basis such a conclusion was reached. The paper issued by...
U.S. government has in recent years exhibited an increasingly aggressive
approach in prosecuting individuals for alleged violations of the Foreign Corrupt Practices Act, (“FCPA”). The FCPA prohibits, inter
alia, any domestic individual
or business entity from making payments to a “foreign official” for the purpose
of obtaining or retaining business 15 U.S.C. § 78dd-2(a)(1). Prosecutors have pushed an expansive view of who is a foreign official
in recent years, in pursuing many cases where bribes were paid to officials at
the FCPA, a...
The recent decision of the
Supreme Court of England and Wales in the case of Rubin and another v Euro Finance SA  UKSC 46 represents a return to a territorial approach in the context of insolvency
proceedings. The Supreme Court
overturned the judgment of the Court of Appeals in what is considered to be a
landmark decision, not on account of any pioneering legal argument but because
it signals a return to the status quo and a rejection of the judicial trend towards a universal approach to cross-border insolvency proceedings.
The Supreme Court judgment re-asserts the...
The English High Court recently handed
down a rather contentious decision in the case of R (on the application of Omar) v Secretary of
State for Foreign & Commonwealth Affairs  EWHC 1737 (Admin), where it held that a Norwich
Pharmacal order cannot compel the provision of evidence for use in foreign
proceedings. The Court distinguished evidence from information, while admitting
that the distinction was not a clear one. In this case the Applicants, (arrested in connection
with the fatal bombing in Kampala during the 2010 FIFA World Cup Final) sought
to compel the...
In June of this year the Eastern Caribbean Court of Appeal dismissed Fairfield Sentry Limited's appeals. The Court of Appeal found that the restitution claims, brought on the basis of alleged mistake as to the value of the Madoff Investment Securities did not render the contracts between Fairfield and the redeeming shareholder null and void. There were contractual obligations to be fulfilled by both Sentry and former shareholders by virtue of Article 10 of Sentry's Articles of Association. The former shareholders had fully performed their obligations under the contract and so upon a...
A wave of
lawsuits have been instituted against a series of banks alleged to have been
involved in the rigging of Libor.
One of the earliest of these was instituted as far back as April of this
year, by Charles Schwab Short Term Bond Market Fund; Schwab Total Bond Market
Fund and Schwab U.S. Dollar Liquid Assets Fund (collectively “the Schwab
Funds”). The Schwab Funds
assert claims for violation of federal anti-trust law, RICO and California
statutory and common law against no less than 21 Defendants, including the
usual suspects, Barclays Bank PLC, the Royal Bank of Scotland...
The first inkling that all may not have been as it should insofar as
the LIBOR (London Interbank Offered Rate or inter-bank lending rate) is concerned, was as far back as 2008 when the Wall Street Journal
published a study which suggested that some banks might have understated their
borrowing costs during the 2008 credit crunch. It was not until earlier this year that such suspicions were publicly confirmed, which begs the question, what took so long?
For those of you who understand the concept of Libor please excuse my crude attempt to explain its workings, however for those like...
Corruption, no saints desired just solutions.
There is a big clue as to why corruption exists, it works as
a short cut. It eliminates the
economic friction of building relations, preparing lengthy and exhaustive bids,
not wasting your time and effort to see if you will make the sale. You have bought the answer you
wanted. The closest analogy is in
gaming, corruption is a lot like fixing a horse race, a boxing match or a
The west looks at places like Africa and Asia with distain.
Bribery as once practiced in tribal West Africa could be
seen as a...
On January 18, 2012 the Court of Appeal of the
Eastern Caribbean Supreme Court sitting in the B.V.I. began hearing arguments
in the appeals involving claims brought by the liquidators of Fairfield Sentry
Limited - the
largest hedge fund invested in Bernard L Madoff Investment Securities LLC (BLMIS) - against the ruling of the BVI
Commercial Court in September 2011 to the effect that the Liquidators could not
claw back funds redeemed by investors.
The outcome of this appeal is awaited with interest throughout the
The crux of Fairfield’s
argument on appeal...