On 7 January 2021, the BVI enacted an important amendment to the Eastern Caribbean Supreme Court (Virgin Islands) Act (the “Act”) which provides that the BVI court now has jurisdiction to grant free-standing interim relief in aid of existing or anticipated foreign proceedings.
This is a significant and welcome development which firmly entrenches, in statute, the so-called “Black Swan” jurisdiction as it has come to be known based on the 2010 Bannister, J decision of the same name (which provided that there was a common law jurisdiction to grant ‘free-standing’ injunctions in the BVI in support of foreign proceedings). Black Swan was later affirmed by the BVI Court of Appeal in the 2011 decision of Yukos Cis v Yukos Hydrocarbons, which further refined the scope of the jurisdiction.
Following the decisions of Black Swan and Yukos, BVI courts proceeded – for virtually a decade – on the basis of this common law jurisdiction to grant free-standing relief. However, in May 2020 (in the decision of Broad Idea International Limited v Convoy Collateral Limited), the BVI Court of Appeal ruled that Black Swan was wrongly decided and opined that it was for the BVI legislature to provide the necessary authority by way of statute.
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BVI Passes Legislation Codifying the “Black Swan” Jurisdiction