Dec 2025
Part XIX of the Insolvency Act 2003 was introduced to support cross‑border cooperation. Still, many years on, there is real debate about the reach of section 467 and how far the court will go to help foreign proceedings. The cases show a mixed picture, broad legislative drafting and comity on the one hand, but some limits on compulsion, standing and who can benefit on the other. The upshot is continued uncertainty about the court’s willingness to assist in varying circumstances.
The Statutory Framework: Broad Powers, With Limits
Section 467 lets a “foreign representative” from a “relevant foreign country” seek relief “in aid of” the foreign proceeding. The range of orders is wide: stays, interim receivership, delivery up of property, coordination orders, and powers to examine; plus a catch‑all to “make such other order or grant such other relief as it considers appropriate.”
Section 468 pulls in the other direction by setting mandatory factors (speed and efficiency, fair treatment of claimants, protection of local interests, anti‑fraud concerns, alignment with BVI distribution priorities, and comity) and carve‑outs for set‑off and preferential creditors, along with a public policy bar. Section 467(5) also allows the court to apply either BVI law or the foreign law of the main proceeding.
Successful Use: Flexible Relief in Aid
Where the statutory gateways are met, the court has used section 467 in practical ways to support cross‑border cases. In Re C (A Bankrupt) (BVIHC (Com) 0080 of 2013), the court assisted a Hong Kong trustee, showing how section 467(3)(h) can confer domestic powers tailored to the needs of the main proceeding. The Court of Appeal in ABN AMRO Fund Services (Isle of Man) Nominees Limited v Kenneth Krys and others (23 January 2017) confirmed that courts may, where appropriate, apply BVI avoidance law and vice‑versa, and that comity supports using flexible tools (including section 467(5)’s foreign‑law option) to deliver fair, efficient cross‑border administration.
When the Court Says No: Compulsion, Purpose and Status
But there are limits. In Irving H. Picard v Bernard L. Madoff Investment Securities LLC BVIHCV 0140 of 2010, the BVI High Court refused applications under section 467(3)(h) and section 470 seeking broad recognition and status, holding that Part XIX offers case‑specific remedies “in aid of” foreign proceedings but does not grant general authority or status to foreign representatives.
Likewise, in James Earp and Nicholas Wood v Agape Ventures Limited, Swanson Limited and Overseas Management Company Trust (B.V.I.) BVIHCV2011/57 (the “VIP.com” case), the court rejected an attempt to use section 467(3)(f) to examine BVI service providers and obtain documents, holding that examinations are limited to those who could be examined in a domestic insolvency and that Part XIX is not a general investigatory power.
A further limit comes from the Court of Appeal’s decision in Net International Property Limited v Adv. Eitan Erez BVIHCMAP2020/0010, which confirms that part XIX is a complete code for assistance and applies only to foreign representatives from designated or relevant countries. Parallel common‑law assistance is no longer available; only common‑law recognition remains, and that does not bring Part XIX relief with it. It is therefore possible that office‑holders from non‑relevant countries may be recognised for status, albeit they cannot access section 467 relief.
The Clarity We Have Not Yet Seen
Despite section 467’s breadth, there are few decisions that truly test paragraph (h)’s “such other relief” or the use of section 467(5)’s foreign‑law option in hard‑fought cases. We have limited guidance on how far the court will go with disclosure short of formal examinations, on orders to deliver property held by non‑debtors, or on novel coordination tools when parallel estates and mixed creditor priorities collide. This can make it difficult for a foreign representative looking at the BVI jurisdiction from afar to accurately assess their prospects of gaining assistance from the BVI court.
There are also some additional apparent tensions: First, the relationship between paragraph (f) examinations and the domestic examination code. At first glance, the cases suggest a foreign office‑holder gets no more than a local liquidator would. That respects sovereignty and due process, but it does not necessarily sit comfortably with paragraph (h)’s breadth and section 467(5)’s ability to apply foreign law.
Second, the meaning of “foreign representative” and “foreign proceeding”: the law is strict on status and country designation, yet results could hinge on whether the foreign process is “collective” and court‑supervised points that are sometimes thinly evidenced or taken for granted.
Some other scenarios remain unclear. For example, a liquidator from a non‑relevant country seeking targeted, non‑coercive disclosure in the BVI to find assets or information relevant to liquidator investigations may get common‑law recognition but not section 467 relief. Or a trustee from a relevant country seeking delivery up of assets held by a BVI professional for a vehicle two steps removed from the debtor: is that really “property of the debtor,” or is prior tracing needed?
Potential for Procedural Overreach and Stakeholder Leverage
Another concern is that section 467 might be pushed to mirror Norwich Pharmacal‑style third‑party disclosure without meeting that test. VIP.Com warns against this: section 467 is not to be misinterpreted as a general power to investigate, and the court is likely to resist using Part XIX to compel third‑party cooperation beyond what a domestic office‑holder could obtain.
Used properly though, section 467 can in theory help stakeholders in international liquidations access information or assets that might be harder to obtain if they relied only on their creditor standing elsewhere, especially where standing rules in the main forum (including the BVI) are tighter than targeted assistance available in aid of a recognised foreign proceeding.
Curiously, the extent to which third‑party disclosure can be compelled under section 467 has not been fully ventilated in recent years in published decisions. However, it is interesting to note that there is an increased push for transparency and accessibility documents relied on in litigation in some commonwealth jurisdictions. For example, the Court of England and Wales has issued a new Practice Direction concerning ‘Access to Public Domain Documents’ filed for or used in hearings in public (PD51ZH), together with an accompanying guidance note. It would allow members of the public to access a wide variety of documents (including skeleton arguments and other written submissions, witness statements and affidavits, and most expert reports) which have been referred to in open court, are within the electronic filing and case management system used by the courts or have otherwise entered the public domain. In comparison, the BVI electronic portal does not have an equivalent system and a BVI IP Practitioner would not have access to documents filed in related proceedings which may provide useful information.
Conclusion
Section 467 gives the court broad tools to support cross‑border insolvency, but three anchors appear to keep them in check: parity with domestic insolvency powers, strict adherence to designation and status under Part XIX, and the section 468 factors. Until a variety of cases squarely test paragraph (h), uncertainty will remain, and applicants will likely continue to use paragraph (h) as if it were a general investigatory or assistance power, unless they are told otherwise in specific categories of cases. Presently, it seems that applications should focus on concrete relief that would be available in a domestic case, and link the request to the section 468 factors, whilst avoiding the use of Part XIX as a substitute for investigative or status‑conferring regimes.