Canadian Lawyer InHouse

NOVEMBER/DECEMBER 2015 14 INHOUSE Q U I Z ANSWERS YOUR RANKING? ■ One correct: might be time to brush up ■ Two correct: not bad, but some further work needed ■ Three correct: very well done, but not perfect ■ Four correct: excellent 1 It depends. When it comes to multi-jurisdictional business disputes, determining where to bring a claim can be one of the most important decisions you and your client make. You have to consider whether the court can — and will — assert jurisdiction. When you commence litigation in the Caribbean, your claim will often be answered with an application to stay the claim on the ground of forum non conveniens. If you're acting for a defendant, the fi rst question to ask is whether you can challenge jurisdiction. Be sure to check the jurisdiction's civil procedure rules. In many Caribbean countries, a defendant must serve an acknowledgement of service or notice of appearance, notwithstanding that he intends to dispute the court's jurisdiction. Failure to fi le the acknowledgement may result in default judgment. To avoid the cost and delay of a forum fi ght when dealing with offshore companies, you must carefully review the legislation pursuant to which the company is incorporated. The legislation that governs offshore or international companies may require that disputes regarding shareholder rights and directors' duties, among other issues, be heard by the court in the jurisdiction where the company is incorporated. For example, the client's oppression action against Caribbean Energy and its directors would likely have to be brought in Nevis, where the company is incorporated, regardless of where the defendants live or work. When contemplating litigation related to an international or offshore trust, remember to check the governing statutes, which may require that disputes be heard by the court of the jurisdiction in which the trust is settled, unless the trust deed provides otherwise. As a practical matter, you should consult counsel called to the bar and experienced in the Caribbean jurisdiction in the early stages of developing your litigation strategy. It will help you and your client to understand not only the law but also the realities of litigating in a foreign jurisdiction, and ensure that your client is in the best position to protect, or defend, its rights when litigating in the Caribbean. 2 It depends. One of the most attractive features of offshore fi nancial centres is confi dentiality of fi nancial information. Many Caribbean jurisdictions have strong statutory protections in place, which keep information about the assets and benefi cial owners of companies (and benefi ciaries of trusts) out of the public record. Some statutes make it an offence to try to obtain this information. For example, in the British Virgin Islands, which is home to almost half of the world's offshore companies, the Business Companies Act, 2004 keeps the identities of directors and shareholders, as well as minutes and resolutions, confi dential and out of the public record. Other jurisdictions have strong statutory protections in place, which prevent the disclosure of confi dential information related to fi nancial or business interests located in the jurisdiction, including the identity of benefi cial owners or the assets or property held by a company. Nevis' Confi dential Relationships Act imposes serious penalties, including imprisonment, for divulging or obtaining or even attempting to divulge or obtain confi dential information. In the Cayman Islands, the 1976 Confi dential Relationships (Preservation) Law prohibits the disclosure of "all confi dential information with respect to business of a professional nature which arises in or is brought into the Islands." While some degree of protection has been eroded by tax information exchange agreements, it can be a challenge to obtain information about an offshore company in the Caribbean. 3 True. When the money trail leads to and through the Caribbean, there are many interim and interlocutory remedies available. While these remedies are similar to those available in Canada, the case law has developed to refl ect the realities of each jurisdiction and local counsel can help to navigate the options. As set out in the civil procedure rules, the courts in the Caribbean have broad discretion to grant a wide variety of interim and interlocutory remedies, which can be used to prevent the dissipation of funds or trace assets that may have been moved into a foreign jurisdiction. In addition to freezing orders to restrain a party from dealing with assets in any jurisdiction or removing assets from the jurisdiction (Mareva injunctions), courts may make preservation orders, Anton Piller or search orders, and Norwich Pharmacal orders for the disclosure of the location of relevant property or assets. 4 It depends. One of the most fundamental considerations in multi-jurisdictional litigation is the ability to enforce a judgment. Whether you will be attempting to enforce a judgment from the Caribbean in Canada, or you have a judgment from Canada that you want to enforce in a Caribbean jurisdiction, you need to consider if and how you can do that. A foreign judgment has no direct operation in a Caribbean jurisdiction until it is recognized and/or registered by the court. A judgment creditor may enforce a foreign judgment either by a claim at common law, or under a statute. Many jurisdictions in the Caribbean have legislation providing for the reciprocal registration and enforcement of judgments. The relevant act will set out a summary procedure for the registration of a foreign judgment from specifi ed countries, where the foreign judgment meets the statutory requirements. If the judgment is from a country that is outside of the statute or does not meet the requirements, the judgment creditor must bring fresh proceedings in the domestic court. Whether enforcing a foreign judgment under a statutory scheme or at common law, there are common requirements that the judgment be: (a) for the payment of a sum of money; (b) fi nal and conclusive; (c) from a court that had jurisdiction over the matters; and (d) not obtained by fraud.

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