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A Perfect and Timely New Year’s Gift from the BVI: Restoration of the Black Swan Jurisdiction

January 2021 Richard G. EvansAnna Lin

On the last day of 2020 and the eve of the new year, the BVI House of Assembly passed the “Black Swan” Bill the Eastern Caribbean Supreme Court (Virgin Islands) (Amendment) Act 2020 (“the Act”) providing certainty on the BVI Court’s jurisdiction to grant a broad range of interim relief in support of proceedings commenced or about to be commenced in a foreign jurisdiction, including of course, Hong Kong, PRC and Singapore. The Act came into force on 7 January 2021, indicating that from that date onwards, a free-standing injunction, also known as a “Black Swan” injunction, is formally enshrined in the BVI legislation for the purposes of providing substantive aid to litigants involved in foreign legal proceedings. This will be of great practical benefit to parties and their litigation attorneys throughout Asia.

The background of the Act is that the BVI Court’s jurisdiction to grant a “Black Swan” injunction was challenged by the Court of Appeal’s decision in Broad Idea International Limited v Convoy Collateral Limited (BVICMAP 2019/0026). The Court of Appeal’s decision in Convoy delivered in May 2020 ruled that an interim relief against a BVI entity could not be sought before the BVI Court when the BVI entity was not involved in any substantive proceedings either in the BVI or elsewhere. This overturned almost ten years of established practice, following the first instance decision in Black Swan which identified the jurisdiction for the grant of such relief. Convoy has since appealed the Court of Appeal’s decision. The appeal will be heard by the Judicial Committee of the Privy Council on 16 February 2021 with a full (7 Justice) panel. In the meantime, unless and until the Privy Council overrules the decision of the Court of Appeal in Convoy legislation would be required in order to found the BVI Court’s jurisdiction to grant any further Black Swan injunction.

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A Perfect and Timely New Year’s Gift from the BVI: Restoration of the Black Swan Jurisdiction