BVI Case Law Updates

Infinity Particles Limited v C2 Capital Limited

11 June 2026 – by Eltin Ryle

BVI Court of Appeal decision highlights the importance of obtaining an appropriate license from the Financial Services Commission (FSC) for regulated activity in the BVI.

Paras. 276 – 366 of the Court of Appeal’s decision in Infinity Particles Limited v C2 Capital Limited may be of interest to regulatory / contentious regulatory practitioners in the BVI. The Court’s analysis of Ground 5 of the appeal focussed on matters related to the BVI Securities and Investment Business Act (SIBA).

The Court of Appeal overturned the Court of First Instance’s finding on the enforceability of certain agreements, and held that advice provided by C2 Capital Limited (C2) to Infinity Particles (Infinity) constituted investment advice within the meaning of SIBA.

C2 did not have a SIBA license to provide investment advice. In the circumstances, the agreements were illegal as a matter of BVI law and could not be enforced by C2. The so called “partnership exemption” did not arise under SIBA as the relationship between C2 and Infinity was one of advisor-client.

The Court of Appeal held that the exercise of discretion under Section 50G of the Financial Services Commission Act (FSCA) to enforce the agreements (having found that the agreements were unenforceable per Section 50F of FSCA) was inappropriate in circumstances where it was clear from the evidence that C2 ought to have known that an FSC license was required to provide investment advice in the BVI.

A key takeaway for BVI practitioners is that the BVI Courts will enforce the strict licensing requirements of the BVI regulatory framework. Regulatory matters ought to be front of mind when drafting commercial agreements.

The full text decision can be read here: Infinity Particles Limited v C2 Capital Limited

Luc A Despins (as Chapter 11 Trustee of the Estate of Ho Wan Kwok) v K Legacy Ltd et al

5 June 2026 – by Olena Golovtchouk

BVI Court refuses jurisdiction to hear a claim involving certain properties in England held by a BVI Registered Company.

Establishing the Court’s jurisdiction to hear a matter is a key factor in international disputes.

The BVI Commercial Court recently examined this issue in Luc A Despins (As Chapter 11 Trustee of the Estate of Ho Wan Kwok) v K Legacy Ltd and Qiang Guo (Mileson Guo). The case focused on the status of certain properties in England held by K Legacy Ltd, a BVI registered Company.

Mr. Luc A Despins, the Chapter 11 trustee of Ho Wan Kwok’s US bankruptcy estate, sued Kwok’s son (Qiang Guo) and K Legacy Ltd,  claiming that the shares in K Legacy Ltd, registered to Qiang Guo, were in fact held for the debtor and that K Legacy Ltd’s properties at 5 Princes Gate, London were purchased with the debtor’s funds and held for his benefit.

The defendants challenged the BVI Court’s jurisdiction to hear the claim, raising the “Moçambique / Immovables Rule”, submitting that the claim over the beneficial interests in properties located in England ought to be resolved by the Courts of England and Wales. The trustee argued that the in personam exception applied, as well as Part XIX of the Insolvency Act 2003.

The Moçambique / Immovables Rule

The Court stated that:

“The immovables rule forms part of the common law of England and Wales and, for present purposes, of the law applicable in this jurisdiction. It is a rule of fundamental importance. At its core lies the proposition that rights to, and interests in, immovable property are governed by the law of the place where the property is situated and that questions concerning such rights and interests are to be determined by the courts of that place.”

The Court further stated that:

“The rationale of the rule also explains why convenience cannot displace it. It reflects domestic public policy, territorial sovereignty, the equality and independence of states, comity, and the need to avoid conflicting decisions by courts of different jurisdictions. It is not merely a case-management preference. Where it applies, the court does not proceed because the subject matter is not one which the court could or should adjudicate upon.”

The In Personam Jurisdiction Exception

Mr. Justice Mithani analyzed an exception to the Moçambique / Immovables Rule known as the in personam jurisdiction rule, which provides the Court with jurisdiction to enforce an existing personal obligation between the parties, even where that obligation relates to foreign property, citing the leading authority of Penn v Lord Baltimore (1750) 1 Ves Sen 444.

The BVI Court stated that the principles of in personam jurisdiction are narrow and require a pre-existing personal obligation: the trustee, as a foreign office-holder seeking to establish a beneficial interest in foreign land, could not rely on the exception. The Court stated that:

“If the immovables rule could be avoided merely by interposing a corporate vehicle between the claimant and the land, the rule would be readily circumvented. A dispute over land could be transformed into a dispute over shares by placing the property in a company incorporated in another jurisdiction. Such an approach would undermine the purpose of the rule and erode the principle that rights in land are governed by the law of the place where the land is situated.”

Key Takeaway Points for BVI Practitioners

Where a dispute arises as to the proprietary rights over foreign properties it is necessary to consider the jurisdiction of the BVI Court to hear such a dispute.

The BVI Court is unlikely to accept jurisdiction over a matter that relates to properties located in England unless the exceptional in personam jurisdiction can be established.

The full decision of the BVI Court can be found here: Luc A Despins (as Chapter 11 Trustee of the Estate of Ho Wan Kwok) v K Legacy Ltd et al

Additional case law cited:

• Penn v Lord Baltimore (1750) 1 Ves Sen 444

JJW Hotels & Resorts Holding Inc. v Benjamin Alexander Rhodes

28 May 2026 – by Nina Roheman

Justice Mithani holds that an unrecognised foreign judgment cannot form the basis of a statutory demand in the BVI.

In JJW Hotels & Resorts Holding Inc v Benjamin Alexander Rhodes, the BVI Court considered whether a statutory demand could be founded upon an unrecognised foreign judgment.

The BVI Court applied the reasoning in Servis-Terminal v Valeriy Ernestovich Drelle (“Drelle”) and found that the foreign judgment has no direct operation in the BVI and therefore absent recognition the debt is not ‘due’.

The BVI Court held that the decision in Drelle is not inconsistent with the decision in Vendort Traders Inc. v Evrostroy Grupp LLC (“Vendort”) in which the Privy Council (on an appeal from the BVI) held that a statutory demand could properly be founded upon a foreign arbitral award in the absence of BVI enforcement proceedings where an underlying contractual debt arose. In the circumstances, Vendort was distinguishable.

A key take away for BVI practitioners is the BVI Court’s support for the position outlined in Drelle, which is of persuasive authority in this jurisdiction. The BVI Court noted that the unsuccessful party in Drelle has been granted permission to appeal that decision to the Supreme Court of the United Kingdom.

The full decision of the BVI Court can be found at: JJW Hotels & Resorts Holding Inc. v Benjamin Alexander Rhodes

Additional case law cited:

• Servis-Terminal LLC v Valeriy Ernestovich Drelle
• Vendort Traders Inc. v Evrostroy Grupp LLC

Luke Almond et al v Linxens Holding SAS

22 May 2026 – by Nina Roheman

BVI Court examines the doctrine of ‘unfair preference’.

Luke Almond et al v Linxens Holding SAS concerned an application by joint liquidators under sections 245 and 249 of the Insolvency Act, for the payment of US$125.9 million by Linxens to be deemed an unfair preference.

Under s. 245, a transaction entered into between a company and a creditor is an unfair preference if four requirements are met, namely, the transaction:

a.  is entered into when the company is insolvent or it causes the company to become insolvent;

b.  is entered into within the vulnerability period;

c.  has the effect of putting the creditor in a better position than it would have been in, in the insolvent liquidation; and

d.  did not take place in the ordinary course of business.

Section 245(4) creates a presumption of unfair preference where the creditor in question is a ‘connected person’ as defined by s. 5 of the Insolvency Act.

In this case, the question for the Court was whether a loan repayment by a BVI insolvent company (TUI) to a related company within the Group (Linxens) which was a connected person within the definition of s. 5, was an unfair preference.

Two key factual matters were examined:

• On 9 December 2020, TUI had announced on a stock exchange that it would be unable to make a final payment of interest and principal due the following day under bonds issued to Citicorp (i.e. that it was cash flow insolvent).
• Yet, two days prior on 7 December 2020, TUI had made a partial loan repayment to Linxens, in circumstances where that loan was not due for repayment until some 9 months later, nor had repayment been demanded[NR1] .

The liquidators argued that the payment to Linxens was an unfair preference in favour of Linxens.

The two issues for determination were whether TUI was cashflow insolvent when it paid Linxens and whether the payment was in the ordinary course of business.

In relation to the first issue, the Court accepted that the Court is entitled to find that the 245(4) presumption is not displaced if:

a.  The judge is not in a position to make a finding of solvency; or

b.  The judge is not in a position to make one or more findings about the ‘building blocks’ (i.e the necessary elements) in the case that the company was solvent.

On this first issue, the case underscores the importance of credible expert evidence on the issue of cashflow solvency and highlights that displacement of the presumption is fact specific. While not a box ticking exercise, if the necessary ‘building blocks’ are missing, the Court can generally adopt the position that the presumption has not been displaced.

On the second issue the Court confirmed that the question of whether a transaction is in the ordinary course of business cannot be divorced from the insolvency context within which the enquiry takes place. The Court’s enquiry examines whether the transaction was designed to confer an unfair preference.

On this issue, the case highlights the importance of looking at the effect of the transaction and the surrounding circumstances to objectively determine the intention behind it.

The full decision can be found here: Luke Almond et al v Linxens Holding SAS

Tetiana Ieremeieva et al v Estera Corporate Services (BVI) Limited

13 May 2026 – by Olena Golovtchouk

BVI Court of Appeal examines the doctrine of trustee de son tort.

The recent BVI Court of Appeal case of Ieremeieva et al v Estera Corporate Services (BVI) Ltd  which examined the doctrine of trustee de son tort, has close connections to my home jurisdiction of Ukraine.

During my travels to Ukraine in recent years, I frequently enjoyed having coffee at the various WOG filling stations operated by the business called WOG Holding Ltd, a company in the corporate structure examined before the BVI Courts.

Court of Appeal Decision

Key points from the Court of Appeal’s decision included:

1. As a developing doctrine, the law relating to trustee de son tort is flexible (Citing Mitchell v Sheikh Mohamed Bin Issa Al Jaber (No 2) [2025] UKSC 43);
2. The issue of trustee de son tort was reasonably arguable and not suitable for strike out, which ought to be limited to plain and obvious cases where there is no point in having a trial;
3. Certain arguments relating to ex tunc effect failed on appeal;
4. As both parties to the appeal were successful in part, the result was costs neutral.

The Court of Appeal’s decision raises important questions about when a Court may impose a finding of trusteeship de son tort, and how the modern law following the UK Supreme Court’s decision in Mitchell v Al Jaber should be applied in the BVI.

The full decision of the Court of Appeal can be found here: Tetiana Ieremeieva et al v Estera Corporate Services (BVI) Limited

Lim Yew Cheng v Guanghua SS Holdings Limited and Lin Minghan

6 May 2026 – by Eltin Ryle

BVI Court of Appeal clarifies legal principles relating to (1) the introduction of fresh evidence on appeal, (2) making new legal arguments on appeal, and (3) obtaining a stay pending determination of foreign proceedings.

The decision in Lim Yew Cheng v Guanghua SS Holdings Limited and Lin Minghan was recently delivered by the Court of Appeal. Of particular note are the following legal points arising:

Firstly, the Court of Appeal reiterated the decision in Ladd v Marshall which established the following test for introduction of fresh evidence on appeal:

1. It must be shown that the evidence could not have been obtained with reasonable diligence for use at the trial;
2. The evidence must be such that, if given, it would probably have an important influence on the result of the case, though it need not be decisive; and
3. The evidence must be such as is presumably to be believed, or in other words, it must be apparently credible, though it need not be incontrovertible.

Secondly, the Court of Appeal (citing Win Business (Caofeidan) Ltd) held that to introduce a new legal point on appeal, permission is needed, and a cogent explanation must be given for its omission from arguments raised before the Court of first instance.  New points of pure law may be allowed if they don’t require additional evidence, but appellate courts are cautious, especially if further evidence would be needed or if insufficient notice to the other party would result in prejudice.

Thirdly, the Court of Appeal (citing Athena Capital) held that the test for a grant of a case management stay is whether it is in the interests of justice to grant a stay. The threshold is high and it is only in rare and compelling circumstances that it will be in the interests of justice to grant a stay on case management grounds to await the outcome of foreign proceedings.

A key takeaway for BVI practitioners is the importance of placing all available evidence and legal argument before the Court of First Instance: it may not be possible to raise fresh evidence and legal argument on appeal.

The full decision of the Court of Appeal can be found here: Lim Yew Cheng v Guanghua SS Holdings Limited and Lin Minghan

AS PNB Banka (in liquidation) v Hillsham Limited

27 April 2026 – by Nina Roheman

BVI Commercial Court rules that no registered agent is required where a company is restored and immediately placed into liquidation

In the judgment of AS PNB Banka (in liquidation) v Hillsham Limited, the BVI Court addresses the interplay between section 91(5) and section 218A(1)(a)(i) of the Business Companies Act (BCA) on the question of whether a registered agent is required where a company is restored to the Register of Companies and immediately placed into liquidation.

• In an exercise of statutory interpretation, the Court ruled that there was no requirement for a registered agent in the circumstances of the case. Some key points from the judgment are:
• To interpret the BCA as requiring the appointment of a registered agent – in circumstances where there would be no interim period of corporate activity as the liquidator would manage the company’s affairs – would be to require compliance of a condition which the legislation itself declares unnecessary (by section 91(5)).
• Section 218A BCA is framed in discretionary rather than mandatory terms in that the Court ‘may’ restore a company if satisfied of certain matters.
• It would be contrary to the BCA and the Insolvency Act to require an insolvent estate to incur registered agent costs merely as a formal and transitional precondition to entering into liquidation, where the statute declares no such appointment is required.
• To impose the registered agent requirement in those circumstances would be to render dissolution an obstacle to the exercise of creditor rights since restoration would be impossible in cases where corporate management has disappeared or is unwilling to cooperate to provide the necessary information for registered agents to consent to act.

Key take away and implications for BVI: A registered agent is not required where a company is restored and immediately placed into liquidation by the same order.

This is a welcomed BVI judgment for creditors who would otherwise be unable to restore a company into liquidation, where they possess little to no information about the company.

In many cases, a registered agent will decline to act for a company if the minimum information required by AML legislation concerning the company has not been received. It is often the case that an applicant may not have such information where the former directors or shareholder are unknown / cannot be found / contacted or are uncooperative. The judgment directly acknowledges this difficulty and the outcome addresses it.

Where, however, an applicant seeks only restoration (without a liquidation order) the requirement for a registered agent remains with the attendant difficulty in cases where the applicant possesses little to no information on the company.

The full decision can be found here: AS PNB Banka (in liquidation) v Hillsham Limited

Wang Wenwei v SPQR Limited Partnership

17 April 2026 – by Nina Roheman

BVI Court rules that it has no Jurisdiction to appoint provisional liquidators over a BVI Limited Partnership

In the recent judgment in Wang Wenwei v SPQR Limited Partnership, the BVI Commercial Court considered the novel issue of whether the Court has power to appoint provisional liquidators over a BVI Limited Partnership under the Limited Partnerships Act 2017.

The Court emphatically concluded that it had no such power – a provisional liquidator is a creature of statute and absent an express power in legislation, such as that contained in s. 170 of the Insolvency Act, the Court cannot appoint a provisional liquidator over a limited partnership.

The Court also noted that even if jurisdiction had been established, the threshold for the appointment of provisional liquidators had not been met in the case.

For the appointment of provisional liquidators, it must be established that

i) it is likely that liquidators will be appointed; and

ii) the appointment of provisional liquidators is necessary to maintain the value of assets owned or managed.

The Court noted that on the first requirement, a determination of the likelihood of the appointment of liquidators would require the Court to assess matters which were within the scope of an arbitration agreement and subject to extant arbitration. The Court declined to do so ‘even in a preliminary way’ and noted that such restraint was consistent with the BVI’s pro-arbitration policy. As to the second requirement, necessity was simply not made out.

This case serves as a reminder to BVI legal practitioners that the appointment of provisional liquidators is an intrusive and draconian remedy which will not be granted lightly. This case also emphasises the importance of the underlying factual matrix in support of any application to the Court.  Finally, it is a reminder of the respect accorded to arbitration agreements by the BVI Courts.

The full decision can be found here: Wang Wenwei v SPQR Limited Partnership Judgment