Feb 2026
Two significant recent judgments delivered by the BVI court, Abdul Kadir Al Muhaidib & Sons Company v Dr Moamena Kamel & Others BVIHC(COM)2024/0213 (29 January 2026) and NKT v NMH and ATG BVIHCMAP2024/0031 (30 January 2026), illustrate the breadth of the court’s engagement with arbitration award enforcement and the procedural mechanisms available to creditors for asset tracing. They demonstrate the BVI is a jurisdiction that is both respectful of the limits of its enforcement powers and robust in its willingness to give effect to valid New York Convention Awards.
NKT v NMH and ATG BVIHCMAP2024/0031 (30 January 2026)
NKT v NMH and ATG is a significant Court of Appeal authority for BVI arbitration enforcement practice and is a “green light” to enforcement of arbitral awards against persons who, although being third parties to underlying arbitration and not named in the arbitral award, are alleged to hold assets on behalf of the award debtor.
The claimants had obtained an ICC arbitration award exceeding US$1.6 billion against the first defendant, a foreign defendant. The ICC award was recognised and enforced by the BVI Court. The first defendant did not seek to set-aside the enforcement order. Subsequently, the respondents to the appeal had successfully applied to join Mr Shani, a foreign defendant, to the enforcement proceedings, who allegedly held shares in a BVI company as a nominee and for the benefit of the first defendant, and sought to obtain a charging order against the shares legally held by Mr Shani in the BVI company. The High Court granted a worldwide freezing order against Mr Shani. The core issue before the Court of Appeal was in relation to whether the BVI court could assist at the enforcement stage and grant charging orders over shares in a BVI company that were legally registered in the name of a third party foreigner, but which the claimants alleged were held as a nominee for the benefit of the first defendant against whom the ICC award was granted and enforced in the BVI, and in the circumstances where no separate or amended cause of action was pleaded against Mr Shani.
Mr Shani objected to the procedural steps taken by the claimants, including his joinder to the existing proceedings, the grant of permission to serve him out of the jurisdiction, and the making of a provisional charging order over shares registered in his name.
The Court of Appeal dismissed the appeal in its entirety, enforcing significant principles regarding BVI enforcement and asset tracing:
- First, on joinder the Court held that the absence of a pleaded case against Mr Shani in the original arbitration award recognition proceedings was not a bar to his joinder. CPR 19.2(3) (Civil Procedural Rules 2002) expressly empowers the court to add a new party where it is desirable so that the court can resolve all matters in dispute. The Court endorsed the line of authority c plc v L & Anor [2001] CLC 1054 confirming that parties may be joined after judgment to resolve disputes about enforcement including disputes as to whether the judgment creditor is entitled to enforce against assets said to be owned by a third party.
- Second, on service out of the jurisdiction, the Court held that once Mr Shani was properly joined, the “necessary or proper party” gateway under CPR 7.3(2)(a) was engaged. The Court was satisfied that there was a serious issue to be tried (the beneficial ownership of the shares), a good arguable case that the gateway applied, and that the BVI was clearly and distinctly the appropriate forum.
- Third, on charging orders and beneficial ownership, the Court affirmed that the BVI Court has jurisdiction over shares in BVI companies by virtue of section 245 of the BVI Business Companies Act, which provides that the situs of the ownership of shares is in the BVI.
- Fourth, the Court addressed the question of whether personal jurisdiction over the third-party shareholder was required before the court could proceed to make a final charging order. The Court found that, although permission to serve the charging order out of the jurisdiction was required (under the CPR 2000), the BVI Court’s jurisdiction over the shares themselves was sufficient to proceed, and it was not oppressive to require a party abroad to participate if they wished to assert their claim over shares held in a BVI company. Importantly, to succeed in obtaining a final charging order over BVI shares held by a registered holder that is a foreign national, the participation of the latter is not a pre-condition. Therefore, the burden is on the third party to defend their alleged beneficial ownership or face the consequences of the hearing in their absence.
It is noteworthy that the claimant’s application for recognition and enforcement was issued under the CPR 2000 Rules. Under the revised 2023 CPR, claimants no longer need to apply for court permission before serving court processes on a foreign defendant outside the BVI as the applicant can self-certify that the service is valid.
Abdul Kadir Al Muhaidib & Sons Company v Dr Moamena Kamel & Others BVIHC(COM)2024/0213 (29 January 2026)
In Abdul Kadir Al Muhaidib & Sons Company v Kamel & Others the Commercial Court declined to enforce a US$23 million arbitral award issued in Cairo that had been set aside by Egypt’s highest court, the Court of Cassation.
The dispute arose from a 2007 Memorandum of Understanding under which Abdul Kadir Al Muhaidib & Sons Company (“Abdul Kadir”), a private equity group with investments in medical, diagnostic, and analytical laboratory services agreed to acquire a 49% shareholding in Al Mokhtabar Medical Laboratories Company, a medical testing business, for EGP 58 million. Following years of litigation and two rounds of Cairo Regional Centre for International Commercial Arbitration, the tribunal issued an award in October 2022 in the amount of US$23 million. On 22 May 2024 Abdul Kadir then obtained ex parte interim orders from the BVI Court, including a worldwide freezing injunction to enforce the award against the Defendants assets in the BVI. Subsequently, however, on 8 May 2025, the Egyptian Court of Cassation set aside the award in its entirety, holding that the denomination of damages in US dollars violated mandatory Egyptian foreign exchange regulations, which it characterised as rules of public order. The judgment was final and not subject to any further appeal, being the decision of the highest court in Egypt. Abdul Kadir nevertheless sought enforcement in the BVI on the basis that the decision of the Egyptian Court of Cassation should not be recognised in the BVI on the grounds that the decision is “manifestly wrong” because the Court of Cassation misconstrued Egyptian currency regulations. The parties have adduced expert evidence from Egyptian judges on the tenability of the set-aside judgment.
The sole issue before the BVI Court was whether it should exercise its discretion under section 86(2)(f)(ii) of the BVI Arbitration Act 2013 (the “Act”) to enforce the award notwithstanding its annulment at the seat in Egypt. Section 86(2)(f)(ii) of the Act mirrors Article V(1)(e) of the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards 1958 (the “New York Convention”) which explains that enforcement may be refused where the award “has been set aside” by a competent authority of the seat.
The Court emphasised that the discretion conferred by section 86(2)(f)(ii) is a narrow one and while Justice Mithani accepted that the BVI Court technically retains power to enforce an award even after it has been set aside, that discretion is confined to truly exceptional circumstances, such as where the foreign annulment judgment itself is impeachable for fraud, a breach of natural justice or contravention of domestic policy.
The BVI Court noted further that the enforcing court is not permitted to re-examine the merits of the annulment decision or to determine whether the foreign court correctly applied its own law. Judgments of apex courts at the seat of arbitration are ordinarily entitled to recognition as a matter of comity, and refusal is justified only in exceptional circumstances such as where recognition would offend basic principles of honesty, natural justice, or the fundamental public policy of the enforcing jurisdiction.
Finally, the BVI Court rejected the Claimant’s expert evidence which characterised the Court of Cassation’s decision as “manifestly wrong,” and “an abomination” holding that a mere assertion that a foreign judgment is wrong is insufficient. Without proper evidence, the Claimant fell well short of satisfying the BVI Court that the Court of Cassation’s decision was so extreme and perverse that no court acting in good faith could have arrived at it. The Court explained that expert evidence, even if accepted in full, would not provide a basis for recognition of the arbitral award because the BVI Court has no authority to act as an appellate court over the Egyptian Court of Cassation. The argument of bias was also refused, but the Court noted that, in principle, bias could form a basis for interference with the apex court decision.
The enforcement claim was dismissed with the worldwide freezing injunction and interim orders also being discharged.
Conclusion
The combined effect of these judgments is to underscore the BVI’s position as a jurisdiction that respects the international arbitration framework, including the supervisory role of the courts of the seat, while providing effective enforcement mechanisms where awards are validly issued in accordance with the New York Convention. Abdul Kadir Al Muhaidib & Sons Company v Dr Moamena Kamel & Others makes clear that a debtor seeking to enforce an award which has been set aside at the seat faces a steep uphill battle to prove to the BVI Court that it ought to exercise its discretion to enforce that award. In comparison, NKT v NMH and ATG illustrates that the BVI Court will not allow a judgment debtor to hide behind nominee structures to frustrate enforcement of a valid award.