Brexit: to IP Completion Day and Beyond Mark Phillips QC on whether British Virgin Islands: Litigation Funding the UK will be flying, or at A liquidator’s year in Insolvency Harneys BVI’s Andrew Stefanie Wilkins least falling, with style Thorp and Peter Ferrer and Burford Capital’s on an important year Robin Ganguly take for liquidators a global look at litigation funding A regular review of news, cases and www.southsquare.com articles from South Square barristers ‘The set is highly regarded internationally, with barristers regularly Chambers UK Bar Awards, winner 2019 appearing in courts CHAMBERS BAR AWARDS around the world.’ Chambers/Insolvency set of the year 2019 CHAMBERS UK CHAMBERS & PARTNERS +44 (0)20 7696 9900 | [email protected] | www.southsquare.com Contents 3 In this issue 06 14 18 Brexit: British Virgin Islands: Litigation Funding in Insolvency to IP Completion Day and Beyond A liquidator’s year Stefanie Wilkins and Burford Capital’s Mark Phillips QC on whether the UK Harneys BVI’s Andrew Thorp and Robin Ganguly on litigation funding will be flying, or a least falling, Peter Ferrer on an important year with style for liquidators ARTICLES REGULARS The Honourable Frank J C 23 From the Editors 04 South Square/RISA 56 Newbould QC News in Brief 64 Cayman Conference Chambers is delighted to welcome Diary Dates 68 our newest Associate Member Euroland 58 South Square Challenge 70 Associate Member Professor Cryptoassets, cryptocurrencies 24 Christoph Paulus on CASE DIGESTS and insolvency developments on the continent William Willson takes a look at Editorial 27 the UK Jurisdiction Taskforce’s Legal Eye 62 Banking & Finance 28 legal statement Madeleine Jones considers Civil Procedure 29 the possibilities and pitfalls Commercial Litigation 31 Guernsey Modernises its 44 of online justice Company Law 33 Insolvency Law Corporate Insolvency 35 Alex Horsbrugh-Porter of Ogier, Personal Insolvency 40 Guernsey, and Daniel Judd set Sport 41 out the principal changes 53 Duties of Administrators 48 Matthew Abraham and Piers Elliot South Square Digest Disclaimer (Henderson & Jones) look at the duties of administrators in respect The content of the Digest is provided to you for of company claims information purposes only, and not for the purpose of providing legal advice. If you have a legal issue, Open All Hours? 53 you should consult a suitably-qualified lawyer. The content of the Digest represents the views of William Willson tries to unravel the authors, and may not represent the views of the current muddle on procedures other Members of Chambers. Members of Chambers practice as individuals and are not in partnership for out-of-hours filing with one another. Designed and produced by Creative Interpartners, London SOUTH SQUARE DIGEST March 2020 www.southsquare.com From the editors and Peter Ferrer of Harneys, British Virgin Islands, which reviews the important insolvency law related developments in the BVI over the last twelve months. With an unerring eye on other important developments in the offshore world, we have a joint article from Alex Horsbrugh-Porter of Ogier, Guernsey and Daniel Judd of Chambers updating us on Guernsey’s MARCUS HAYWOOD AND WILLIAM WILLSON new insolvency law passed on 15 January 2020. Given the increasing importance Welcome to first edition of the of litigation funding to lawyers and insolvency practitioners in complex South Square Digest for 2020 international cases, we also have an article by Robin Ganguly of Burford Capital and Chambers’ Stefanie The start of 2020 has already seen a has reached pandemic potential, the Wilkins which examines the state of number of significant events around IMF replied that it is the “most pressing the law regarding litigation funding the world. On 31 January 2020, the UK uncertainty” facing the world economy in insolvency in key litigation hubs left the EU and has now entered the right. In late February European stock around the world. 11-month “implementation” period. markets endured their worst session In another joint article, Piers Elliott Finally, we’ve reached the end of the in 5 years. Millions of companies in of Henderson & Jones and Matthew beginning. But time is short and much China are struggling to stay afloat. Abraham consider the equally is to be decided. The negotiators are Bloomberg has reported that only one important and not unrelated topic primed and the red lines have been third of Chinese SMEs had sufficient of an administrator’s duties when drawn. Will there be a “Canada-style cash to cover fixed expenses for a considering whether to pursue or deal” with the EU, some other form month, with another third running assign litigation and the practical of deal or no deal at all? After last out in two months. The global steps that can be taken to minimise editorial’s (mis-) prediction that “the economic shockwaves are potentially the risk of claims being brought surest [general election] bet looks like a catastrophic. against administrators. record number of non-Conservative and Ever topical, this edition of the Digest non-Labour MPs in Parliament”, we’re And in our regular “Legal Eye” piece, kicks off with an article by Mark keeping quiet this time. Madeleine Jones considers the future Phillips QC in which he continues his of “online justice” and how that might In other news, over 15 years after Brexit series with a detailed analysis look. Meanwhile, Professor Christoph the SARS outbreak, the world is of the applicable laws during the Paulus continues his regular Euroland facing another Coronavirus epidemic, “implementation” period and some of column and updates us of recent COVID-19. Whilst the world’s press the important issues that are likely to developments of interest on has understandably focused to date affect us in the months ahead. the continent. on the human impact, there are grave Moving from Europe to the Caribbean, economic consequences. When the The period since the last edition of we have an article from Andrew Thorp WHO has warned that the outbreak the Digest was published in November From the Editor 5 2019, has also seen the handing down Counsel following the 2019 It goes without saying that if you have of judgments in a number of important competition. The QC Ceremony will any feedback to give us in relation to cases including the decision of the take place on Monday 16 March 2020 the Digest – positive or negative – we Supreme Court in Singularis Holdings at Westminster Hall. would be delighted to hear from you. Ltd v Daiwa Capital Markets Europe Ltd We also welcome Frank Newbould QC Many thanks to all for their and the decision of the Privy Council as an Associate Member of Chambers contributions. As always, views in Pearson v Primeo Fund. A summary from January of this year. Frank is expressed by individual authors and of these cases, along with other cases well-known and highly respected in contributors are theirs alone. of note, many involving members of the world of restructuring. Prior to Chambers, appear as always in the We hope you enjoy this edition of his retirement from the bench, he was Case Digests. the Digest. And if you find yourself a Judge of the Ontario Superior Court reading someone else’s copy and wish And of course, we have the Digest of Justice and from 2013 to 2017 head to be added to the circulation list, Quiz, which in this edition adopts of the Commercial List in Toronto, please send an email to kirstendent@ a sporting theme. Canada’s leading commercial court. southsquare.com and we will do our A full article about his Associate In other news, South Square is best to make sure that you will get the Membership of Chambers appears delighted to announce that Richard next edition and all future editions. later in this edition of the Digest. Fisher is to be appointed Queen’s Marcus Haywood & William Willson SOUTH SQUARE DIGEST March 2020 www.southsquare.com Brexit: to IP completion day and beyond! MARK PHILLIPS QC Brexit: to IP Completion Day and beyond! 7 Throughout the Brexit saga I have the EU in the future. The European 1. As a result of the Withdrawal Agreement new mechanism in the Act 2020). compared the process to a stressful car Communities Act 1972 (the “ECA 72”), saving of parts of the journey with noisy children fighting which will not be repealed in full European Communities 7. Section 1 of the Act 1972 during the Withdrawal Act. in the back. I cannot describe 11pm on until after the IP completion day, the implementation period. Friday 31st January 2020 as the arrival European Union (Withdrawal) Act 2018 2. As explained below, of our surviving travellers at their final (the “Withdrawal Act”), that has in section 3 of the destination. They might be said to turn been amended and supplemented Withdrawal Act provides that the operative have driven to the airport, boarded the by the European (Withdrawal provisions of EU law aircraft and left airport EU, but where Agreement) Act 2020 (the “Withdrawal on completion of the Implementation Period they might land is something we will Agreement Act”), which in turn gives become UK domestic 4 law. That will be discover over the rest of 2020. The UK effect to the withdrawal agreement. affected by two things, has passed through the door marked There is also the Political Declaration what the operative provisions are on that ‘exit’ and is no longer a Member but that does not give rise to present date and whether they State of the EU. However, until after legal rights or obligations during the have been superseded by agreements between completion of the “implementation implementation period.