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Offshore Cases

Shareholder Rights and Remedies: a summary

January 2021 CompaniesUnfair PrejudiceWinding Up

This article summarises certain remedies available to aggrieved shareholders of companies incorporated in the popular offshore jurisdictions of the BVI and the Cayman Islands.

Unfair Prejudice

Statutory ‘unfair prejudice’ remedies are often employed by aggrieved shareholders who consider that the affairs of the relevant company are being conducted in a manner that is oppressive, unfairly discriminatory or unfairly prejudicial to them in their capacity as members of the company.  In the BVI, shareholders may bring this action under Section 184I of the BVI Business Companies Act, 2004.

There is no free-standing statutory remedy for allegations of unfair prejudice in the Cayman Islands, outside the context of a winding up petition on just and equitable grounds under section 92(e) of the Cayman Islands Companies Act (2020 Revision). However, section 95(3) of the Law allows the Court to grant an alternative remedy for minority shareholders that can establish, in principle, that it is just and equitable that a company should be wound up, by, for example, ordering the sale or purchase of shares or a wide range of other remedies which are listed as alternatives to winding-up the company, including an order regulating the conduct of the company’s affairs, an injunction, or an order authorizing civil proceedings. No remedy under either statutory regime is granted as of right by the Court following an established claim of unfair prejudice or an entitlement to a winding-up order.  The Court’s main function is to exercise its discretion to grant a remedy which is fair and proportionate in the circumstances.

There is no prescribed time limit for bringing unfair prejudice claims in the BVI, but the court will take into account any delay in starting proceedings.

 

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Shareholder Rights and Remedies: a summary

 

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