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Exploring Offshore Litigation

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by Harneys

243 episodes

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Podcast Overview

Exploring Offshore Litigation is a captivating podcast series containing audio of written blog content that dives deep into the intriguing world of offshore litigation, including the BVI and Cayman. Each episode sails through complex legal waters, bringing you up-to-date analysis of recent high-stakes cases and expert commentary from the leading minds in this specialised field. Our episodes demystify legal jargon and break down complex cases to make them accessible to all. Harneys, an international law firm with entrepreneurial thinking, brings each episode to you.

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12/21/2023

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GoodBased on show quality, social media presence, reviews, charts, and more

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Engagement27

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Recent Episodes

June 18, 2026

Twilight-zone treasury payments: BVI Court orders US$125.9 million clawback

In a recent decision of the BVI Court, a connected group company was ordered to repay US$125.9 million after a last-minute intra-group loan repayment was found to be an unfair preference. In Almond v Linxens, the Court held that a payment by Tsinghua Unigroup International Co., Ltd (TUI) to Linxens, made two days before announcing a bond default, was designed to prefer an insider over the external bondholders. The decision confirms that intra-group treasury movements in the twilight zone will be judged by their commercial reality, not their characterisation as ordinary financing activity. TUI was a BVI-incorporated finance vehicle within a large PRC conglomerate, established to raise debt and make investments as directed by the group. On 7 December 2020, it paid US$125.9 million to French group company Linxens as a partial repayment of a loan that was not due for another nine months and had not been demanded. Two days later, TUI announced to the Hong Kong Stock Exchange that neither it nor its subsidiary bond issuer could meet bond repayments of around US$463 million. TUI also faced a significant liability to another Hong Kong group entity, Tsinghua Unic Limited, with the first tranche of US$1.05 billion falling due less than two months later. TUI's liquidators applied to set aside the payment as an unfair preference. Because Linxens was a connected person, the BVI Insolvency Act presumed that the payment was an insolvency transaction not made in the ordinary course of business. It was for Linxens to prove otherwise. Linxens argued that TUI was solvent when the payment was made and that the payment was ordinary-course treasury activity. On solvency, the Court adopted the "building blocks" approach from Bucci v Carman (Re Casa Estates): it is not necessary to reconstruct a company's exact solvency position. If the respondent cannot establish the necessary building blocks for its solvency case, the statutory presumption prevails. Several building blocks were absent. There were no bank statements to substantiate Linxens' claims that TUI had received US$523 million in cash - despite Linxens having been granted an adjournment specifically to obtain this evidence. Even if the funds had been received, there was no evidence they were freely available to TUI rather than earmarked for onward payment to the group parent. Corrections and concessions by Linxens' own expert at trial further undermined the viability of the solvency arguments. The ordinary-course defence also failed. While the Court accepted that loan repayments were within the type of business TUI ordinarily conducted, applying Lord Mansfield's distinction in Rust v Cooper, the Court held that it is not enough to ask whether the type of transaction fell within the company's ordinary business. If that were the test, no routine transaction type could ever amount to an unfair preference. The real question is whether the design behind the specific transaction was to confer a preference. A preference obtained "consequentially", as a by-product of continuing trade, is on one side of the line; a preference obtained "by design" is on the other. The repayment was not demanded, was not due, and was rushed through within 48 hours. The contemporaneous documents showed that the group was pushing cash back to operating entities to reduce the impact of the impending bond default. Linxens' own CFO described TUI's conduct as "weird" and "very strange", and a colleague suggested freezing Linxens' cash "for safety['s] sake" - reactions inconsistent with an ordinary-course transaction. Linxens' own employees understood that the payment was being made because the group was "pushing back all the cash to the operating units to ensure that there is as little impact as possible of [the] likely December 10 default on those bonds." Linxens argued that the loan had originally been made to purchase bonds trading at a discount and was simply being repaid when TUI had sufficient funds. The Court reject...

Episode thumbnail for 58.com - Court determines reliability of merger price in latest section 238 fair value appraisal judgment
Background
The judgment
Key takeaways

June 12, 2026

58.com - Court determines reliability of merger price in latest section 238 fair value appraisal judgment Background The judgment Key takeaways

The Grand Court has delivered its judgment in Re 58.com, Inc., a long running and highly contested section 238 fair appraisal dispute in the Cayman Islands. Following a six-week trial before the Honourable Chief Justice Ramsay-Hale in 2024, the Court ultimately rejected the dissenters' contended fair value of $105.56 per American Depository share (ADS) (89 per cent higher than the merger consideration) based on a discounted cash flow (DCF) analysis. Recognising the Privy Council's decision in Maso Capital Investments Ltd v Trina Solar Ltd (Trina Solar), the Court determined that the merger consideration of US$56 per ADS represented the fair value of the dissenters' shares, noting that "a flawed [merger] process does not automatically disqualify the merger price". Prior to the merger, 58.com was a NYSE-listed, Cayman Islands-incorporated company which operated an online classifieds platform in the People's Republic of China. In 2020, its founder and CEO, Mr Jinbo "Michael" Yao, led a management-backed take-private by a consortium including Ocean Link Capital, Warburg Pincus and General Atlantic, at a price of US$56 per ADS. The merger, valued at US$8.7 billion, was the largest take-private of a PRC company at the time. Following completion, the dissenters (comprising professional appraisal arbitrage investors) exercised their statutory right under section 238 of the Cayman Islands' Companies Act to have the Court determine the fair value of their shares. At trial, the Company argued that fair value represented an average of the merger price blended with a mid-point of Adjusted Market Trading Price (AMTP), so that merger price operated not as a primary indicator of fair value but as a ceiling that should not be exceeded. The dissenters, on the other hand, relied exclusively on a DCF analysis, arguing that no weight could be placed on merger price due to flaws in the merger process. They also challenged the reliability of an AMTP valuation on the basis that the market for the Company's shares was inefficient and that material non-public information (MNPI) was available to insiders – both of which they argued rendered fair value unreliable. The Court acknowledged that the "decision in Trina Solar makes it clear that the reliability of the transaction price forms part of the Court's assessment of the appropriate valuation methodology and must be evaluated before determining the weight to be given to competing indicators of value". The Court upheld the Privy Council's determination that reliability of the merger price is not a binary concept but a qualitative assessment on a sliding scale and there is no presumption in favour of, or against, the merger price. The Court further noted that deficiencies in the deal process do not automatically disqualify it and that factors identified in the relevant Delaware authorities (on which the Cayman Islands courts have relied in section 238 appraisal matters) can be persuasive and are useful guides, but they are not a checklist that must be satisfied before any reliance may be placed on a merger price. While the Court acknowledged certain imperfections during the merger process in 58.com, including informal communications between a Special Committee member and the buyer group, and the absence of a go-shop/market check, it was not persuaded that those features distorted the merger price ultimately agreed or deprived the Special Committee of its ability to act independently. The Court also concluded that AMTP was not a reliable indicator of fair value in this case and should be accorded no material weight given certain MNPI (comprising revised management projections and operational updates that were available to insiders of the Company) and concerns regarding the roll-forward carried out by the Company's expert, undermined the premise that the market price reflected intrinsic value. The Court also rejected the dissenters' DCF valuation on the basis that that their chosen cash flow inputs were...

Episode thumbnail for A paradigm case for privacy: the Grand Court's authoritative restatement on confidentiality in trust proceedings
Background
The legal framework: balancing open justice and privacy
Judgment
Comment

June 11, 2026

A paradigm case for privacy: the Grand Court's authoritative restatement on confidentiality in trust proceedings Background The legal framework: balancing open justice and privacy Judgment Comment

The recent decision in In the Matter of the D, E, F, G and H Trusts serves as an important reminder on the nature of the confidentiality framework in trust proceedings for parties in the Cayman Islands. In a clear and helpful judgment, the Grand Court has restated the principles governing when, and how, confidentiality orders will be granted in private trust cases. Between 2007 and 2009, a former trustee accepted additions to the trust fund from an individual without appreciating that, under the terms of the trust instrument, the act of making those additions rendered the contributor a "settlor" and, by operation of the definitional machinery, an "excluded person" who could no longer benefit from the trust. Distributions were subsequently made to or for the benefit of that individual, and assets were transferred to related trusts established for his children in which he also held an interest. On the trustee's analysis, each of these steps had been taken in breach of trust. Seeking to rectify the position, the current trustee turned to a remedy that will be familiar to trust practitioners: an application under section 64A of the Trusts Act (2021 Revision), the statutory codification of the Hastings-Bass jurisdiction in Cayman law, for declarations that the relevant deeds of addition were void. Before filing the substantive proceedings, the trustee adopted what has become the established two-stage approach: by first making an ex parte on notice application for confidentiality and anonymisation orders designed to shield the trusts, the family, and the proceedings from the public; followed by the substantive section 64A proceedings. The Chief Justice identified the constitutional starting point in determining whether to grant a confidentiality order: the principle of open justice. Sections 7(1) and 7(9) of the Constitution require that proceedings be conducted in public and, as Newman JA observed in AHAB, "the administration of justice in Cayman must comply with the principle of open justice". That principle, however, is not absolute. The Chief Justice noted how section 7(10) of the Constitution expressly permits derogation where it is "necessary or expedient in the interests of justice", including where publicity would prejudice the interests of justice, involve the welfare of minors, or compromise the private lives of the persons concerned. Drawing on a rich line of authority, the Chief Justice distilled the applicable test into three clear questions: 1. Gateway: Does the case fall within a recognised category permitting derogation from open justice? 2. Proportionality: Is the confidentiality sought necessary and proportionate? 3. Countervailing interest: Is there any public interest that outweighs the privacy interests engaged? Applying the three-stage test to the present case, the Chief Justice found this to be "a paradigm case for the grant of confidentiality orders". The Court found that: the proceedings were properly characterised as internal trust administration matters; that there was no suggestion of public misconduct, regulatory concern, or wider public interest engaged; and that the information at stake (encompassing financial affairs, family relationships, and the identity and status of beneficiaries, including minors) was described as "inherently private". The Court accordingly granted the relief sought: anonymisation of the parties by initials, the filing of an anonymised originating summons only, sealing of the court file, private hearings, and anonymised publication of any resulting judgments or orders. This judgment serves as a welcome restatement of the principles governing confidentiality in Cayman Islands trust proceedings. For parties to trust applications and proceedings, the Chief Justice's three-stage test provides a clear framework that must be squarely addressed in every application: 1. Identify the gateway: establish that the matter falls within a recognised category permitting derogation from open j...

243 total episodes available

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What is Exploring Offshore Litigation?: Exploring Offshore Litigation is a captivating podcast series containing audio of written blog content that dives deep into the intriguing world of offshore litigation, including the BVI and Cayman. Each episode sails through complex legal waters, bringing you up-to-date analysis of recent high-stakes cases and expert commentary from the leading minds in this specialised field.

Our episodes demystify legal jargon and break down complex cases to make them accessible to all.

Harneys, an international law firm with entrepreneurial thinking, brings each episode to you.
How often does this podcast release new episodes?: This podcast updates daily.
Where can I listen to this podcast?: This podcast is available on 6 platforms including Apple Podcasts, Spotify, and more. You can also use the RSS feed directly.
Does this podcast accept guests?: No, this podcast does not typically feature guests.

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