Bermuda Law Blog

Fozeia Rana-Fahy
2014 also saw the introduction of the Trustee (Special Provisions) Amendment Act 2014 (the “Act”) which provides statutory clarity and certainty with respect to the powers settlors can reserve or grant over a trust without calling into question the validity of the trust structure. The powers enshrined in this legislation are expected to attract a wide class of settlors from both North America and Europe and further enhance Bermuda’s reputation as the offshore jurisdiction of choice for trusts. The Act amends the Trusts (Special Provision) Act 1989 by inserting a new section 2A which sets out an express list of certain interests and powers that can be retained by a settlor or granted to a third party, including the following:

Jennifer Haworth
In the case of Abu Dhabi Commercial Bank PJSC v Algosaibi Trading Services Limited [2014] SC (Bda) 71 Com (12 September 2014), the Chief Justice delivered an ex tempore judgment which clarified what the position is when a registered office purports to resign. It confirmed the traditional view held by many commercial practitioners that section 62(3) of the Companies’ Act 1981 (the “Act”) means that when a registered office has not been changed with the Registrar of Companies (“ROC”), the last known registered office remains the effective office for service.

Timothy Frith
In January this year we acted for the Plaintiff against five Defendants in a claim for damages for breach of a Sale & Purchase Agreement of a Bermudian fund management company. The Defendants were directors and shareholders of the fund management company and had negotiated a staged management buyout from the Plaintiff vendor. The Plaintiff alleged that the Defendants entered into an agreement with another fund manager to conduct business from their platform in an attempt to evade liability for ongoing payment of the staged purchase trailer fees (“the impugned transaction”).

Timothy Frith
Article 8 UNCITRAL Model Law In September of this year we acted on a very significant international commercial dispute where the question arose as to whether proceedings in Bermuda would be stayed pending the determination of arbitral proceedings in Canada which would deal with the central question of whether a previous settlement agreement extended to the Defendant and whether the Defendant had a complete defence to the Claim.

Fozeia Rana-Fahy
In its 2014 decision, the Court of Appeal considered Chief Justice Kawaley’s first instance 2013 decision to order the production of trust documents to a beneficiary notwithstanding that the trust deed contained an information control mechanism designed to prevent disclosure of financial information unless the Protector (who was also the principal beneficiary) consented.

Jennifer Haworth
An important decision came from the Court of Appeal this year relating to the issue of whether a party has submitted to the jurisdiction in proceedings outside of Bermuda. In Kader Holdings Company Limited v Desarrollo Inmoniliario Negocios Industriales De Alta Technologia De Hermosilio, S.A. De CV [2013] CA (Bda) 13 Civ (10 March 2014), the Court of Appeal reversed the Chief Justice’s ruling of July 2013 in which he granted Desarrollo summary judgment in respect of its claim to enforce a judgment given in the Superior Court of the State of Arizona in June 2011. The primary issue on appeal was whether Kader submitted to the Arizona proceedings by making a voluntary appearance, and counterclaiming in those proceedings.

Andrew A. Martin
In the world of cross border insolvencies, two important judgments in the Privy Council have clarified three issues which have great significance, not just for Bermuda, but all offshore jurisdictions which have insolvency provisions based on the English model, whether 1948 Companies Act or Insolvency Act 1986. The facts have been well reported and do not bear repeating here.

Jessica Kemmenoe
The United Kingdom (the “UK”) is party to many international treaty obligations but how far do these international treaty obligations extend to UK territories? This question was considered in the recent case of BEST v Minister of Home Affairs [2014] SC (Bda) 61 App (6 August 2014). Given the legal autonomy Bermuda has to the UK, this case raises an interesting legal issue.