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Case 17-2992, Document 1093-5, 05/09/2018, 2299206, Page1 of 261 Exhibit List Statutes & Regulations British Virgin Islands Insolvency Act (2003), Part XIX (Sections 466–472) B Cayman Companies Law (2016), Sections 145–147, 240–243 United Kingdom Cross-Border Insolvency Regulations (2006), Art. 25 of Schedule 1 United Kingdom Insolvency Act (1986), Sections 213, 238–239, 423, 426 Cases Re Al Sabah [2002] CILR 148 Al Sabah and Another v. Grupo Torras SA [2005] UKPC 1, [2005] 2 A.C. 333 AWB Geneva SA v. North America Steamships Limited [2007] 1 CLC 749 AWB Geneva SA v. North America Steamships Limited [2007] 2 Lloyd’s Rep 31 Banco Nacional de Cuba v. Cosmos Trading Corporation [2000] 1 BCLC 813 Banque Indosuez SA v. Ferromet Resources Inc [1993] BCLC 112 Bilta (UK) Ltd v Nazir (No 2) [2013] 2 WLR 825 Bilta (UK) Ltd v. Nazir [2014] Ch 52 (CA) Bilta (UK) Ltd v. Nazir [2016] AC 1 (SC) Bloom v. Harms Offshore AHT “Taurus” GmbH & Co KG [2010] Ch 187 Case 17-2992, Document 1093-5, 05/09/2018, 2299206, Page2 of 261 Exhibit List Cases, continued Re Paramount Airways Ltd [1993] Ch 223 Picard v. Bernard L Madoff Investment Securities LLC BVIHCV140/2010 B Rubin v. Eurofinance SA [2013] 1 AC 236; [2012] UKSC 46 Singularis Holdings Ltd v. PricewaterhouseCoopers [2014] UKPC 36, [2015] A.C. 1675 Stichting Shell Pensioenfonds v. Krys [2015] AC 616; [2014] UKPC 41 Other Authorities McPherson’s Law of Company Liquidation (4th ed. 2017) Anthony Smellie, A Cayman Islands Perspective on Trans-Border Insolvencies and Bankruptcies: The Case for Judicial Co-Operation , 2 Beijing L. Rev. 4 (2011) Cases Cited by Amici Curiae A, B, C & D v. E , HCVAP 2011/001 Ayerst (Inspector of Taxes) v C&K (Construction) Ltd [1976] AC 167 Re Babcock & Wilcox Canada Ltd. , 2000 CanLII 22482 (O.N.S.C.) Blum v. Bruce Campbell & Co. , [1992-3] CILR 591 Changgang Dunxin Enterprise Company Ltd. , Unreported, Cause No. FSD 270 of 2017 (LMJ) (Grand Ct. Fin. Servs. Div. Feb. 8, 2018) Re CHC Group Ltd. , Unreported, Cause No. FSD 5 of 2017 (RMJ) (Grand Ct. Fin. Servs. Div. Jan. 10, 2017) Case 17-2992, Document 1093-5, 05/09/2018, 2299206, Page3 of 261 Exhibit 13 Case 17-2992, Document 1093-5, 05/09/2018, 2299206, Page4 of 261 A The Law Reports Appeal Cases B Supreme Court v C Bilta (UK) Ltd (in liquidation) and others Nazir and others (No 2) [2015] UKSC 23 2014 Oct 14, 15; Lord Neuberger of Abbotsbury PSC, Lord Mance, 2015 April 22 Lord Clarke of Stone-cum-Ebony, Lord Sumption, D Lord Carnwath, Lord Toulson, Lord Hodge JJSC Company Ñ Fraud Ñ Knowledge of company Ñ Companys claim for conspiracy to defraud Ñ Whether defence of ex turpi causa non oritur actio available to companys directors or those alleged to have conspired with them Ñ Companies Act 2006 (c 46), ss 172, 239 Insolvency Ñ Winding up Ñ Fraudulent trading Ñ Statutory provision making E persons party to fraudulent trading liable to contribute to companys assets Ñ Whether having extraterritorial e›ect Ñ Insolvency Act 1986 (c 45), s 213 The rst and second defendants were the sole directors of the rst claimant, a company incorporated in England and registered for the purposes of VAT. The company purchased carbon credits on the Danish Emissions Trading Agency from traders carrying on business outside the United Kingdom, including the sixth defendant, a company incorporated in Switzerland the sole director of which was the F seventh defendant. Accordingly the purchases were zero-rated for VAT. The rst and second defendants as directors owed duciary duties to the company under sections 1 172 and 239 of the Companies Act 2006 . The second and third claimants, the companys liquidators, claimed that a conspiracy existed to injure and defraud the company by trading in carbon credits and dealing with the resulting proceeds in such a way as to deprive the company of its ability to meet its VAT obligations on such trades. It was claimed that the defendants were knowingly parties to the business of G the company with intent to defraud creditors and for other fraudulent purposes, and 2 should therefore be ordered under section 213 of the Insolvency Act 1986 to contribute to the companys assets. The sixth and seventh defendants, who were 1 Companies Act 2006,s172: see post, para 124. S 239:Ô(1) This section applies to the ratication by a company of conduct by a director amounting to negligence, default, breach of duty or breach of trust in relation to the company. (2) The decision of the company to ratify such conduct must be made by resolution of the H members of the company. (3) Where the resolution is proposed as a written resolution neither the director (if a member of the company) nor any member connected with him is an eligible member . (5) For the purposes of this section (a) conduct includes acts and omissions . (7) This section does not a›ect any other enactment or rule of law imposing additional requirements for valid ratication or any rule of law as to acts that are incapable of being ratied by the2 company.Õ Insolvency Act 1986,s213: see post, para 107. ' 2016 The Incorporated Council of Law Reporting for England and Wales Case 17-2992, Document 1093-5, 05/09/2018, 2299206, Page5 of 261 2 Bilta (UK) Ltd v Nazir (No 2) (SC(E))(SC(E))[2016] AC claimed to have dishonestly assisted the conspiracy, applied for orders that the claim A be summarily dismissed as against each of them on the grounds, among others, that (1) the claim by the company was precluded by an application of the maxim ex turpi causa non oritur actio on the basis that the pleaded conspiracy disclosed the use of the company by its directors and their associates to carry out a carousel fraud, the only victim of which was the Revenue and Customs Commissioners, and since the company was a party to the fraud it could not claim against the other conspirators for losses which it had su›ered as a result of the fraud which it had carried out, and B (2) the liquidators claim for fraudulent trading under section 213 of the 1986 Act was bound to fail because the section had no extraterritorial e›ect. The application was refused on the grounds, among others, that the defence of ex turpi causa non oritur actio was not available to the defendants, and section 213 of the 1986 Act was of extraterritorial e›ect. The Court of Appeal upheld that decision. On appeal by the sixth and seventh defendants Held, dismissing the appeal, (1) that in most circumstances the acts and state of C mind of its directors and agents could be attributed to a company by applying the rules of the law of agency, but ultimately the key to any question of attribution was always to be found in considerations of context and the purpose for which the attribution was relevant; that where the purpose of the attribution was to apportion responsibility between a company and its agents so as to determine their rights and liabilities to each other, the result would not necessarily be the same as it would be in a case where the purpose was to apportion responsibility between the company and a D third party; that where a company had been the victim of wrongdoing by its directors, or of which its directors had notice, that wrongdoing or knowledge of the directors could not be attributed to the company as a defence to a claim brought against the directors by the companys liquidators, in the name of the company and/or on behalf of its creditors, for the loss su›ered by the company as a result of the wrongdoing even where the directors were the only directors and shareholders of the company, and even though the wrongdoing or knowledge of the directors might be E attributed to the company in other types of proceedings; and that, accordingly, the defence of ex turpi causa non oritur actio was not available to the defendant directors against the companys claim because the defendants wrongful activities could not be attributed to the company in the proceedings brought by the liquidators (post, paras 7—9, 39—48, 84, 86—97, 181, 202, 208). Tinsley v Milligan [1994] 1 AC 340, HL(E), Meridian Global Funds Management Asia Ltd v Securities Commission [1995] 2 AC 500, PC, Stone & Rolls Ltd v Moore Stephens [2009]AC1391, HL(E), Safeway Stores Ltd v Twigger [2011] Bus LR F 1629, CA and Moulin Global Eyecare Trading Ltd v Inland Revenue Comr (2014) 17 HKCFAR 218 considered. (2) That an English court winding up an English company had worldwide jurisdiction over the companys assets and their proper distribution; that section 213 of the Insolvency Act 1986 had extraterritorial e›ect so that an order winding up a company registered in Great Britain had worldwide e›ect and provided a remedy against any person who had knowingly become a party to the carrying on of business G with a fraudulent purpose of a now insolvent company; and that, accordingly, section 213 could be invoked against the defendants (post, paras 10, 53, 106—111, 213—214). In re Paramount Airways Ltd [1993]Ch223, CA approved. Per Lord Toulson and Lord Hodge JJSC. The duciary duties of a director of a company which is insolvent or bordering on insolvency di›er from the duties of a company which is able to meet its liabilities, because in the case of the former the H directors duty towards the company requires him to have proper regard for the creditors and prospective creditors.
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