Cayman Court Sets Test for Winding Up a Branch of a Foreign Bank
Partner Paul Kennedy and attorney Natasha Partos of Campbells discuss the criteria under which a foreign bank can be wound up in the Cayman Islands.
Silicon Valley Bank
In the recent decision of In the Matter of Silicon Valley Bank (Cayman Islands Branch) FSD 163 of 2023 (DDJ), the Honourable Justice David Doyle confirmed the Grand Court’s jurisdiction to make a winding-up order in respect of a foreign company.
In March 2023, it was widely reported that Silicon Valley Bank Santa Clara CA (the “Bank”) had been closed by the California Department of Financial Protection, and that the Federal Deposit Insurance Corporation had been appointed as Receiver over the Bank’s assets due to its inability to pay its depositors.
On 13 June 2023, a group of depositors petitioned to have the Cayman Islands branch of the Bank (the “Branch”) wound up on the ground that its failure to return their deposits of approximately USD6 million demonstrated its inability to pay its debts within the meaning of Section 93(c) of the Companies Act (2023 Revision) (the “Companies Act”).
Doyle J accepted that the Cayman Court has jurisdiction to wind up a foreign company in the Cayman Islands, pursuant to Section 91(d) of the Companies Act, in circumstances where it:
- has property located in the Islands;
- is carrying on business in the Islands;
- is the general partner of a limited partnership; or
- is registered as a foreign company under Part IX of the Companies Act.
The Branch had been registered as a foreign company in Cayman since 2007 and continued to be registered at the time of the hearing.
Latreefers Test
The Court also accepted that the “Latreefers” test as applied by Collins J (as he then was) in the English decision in Re Drax Holdings Ltd 2004 W.L.R 1049 is applicable in the Cayman Islands – namely that the Court should exercise its discretion to order the winding up of a foreign company if:
- there is a sufficient connection with the jurisdiction, which may consist of assets within the jurisdiction, but does not necessarily have to;
- there is a reasonable possibility of benefit to those applying for the winding-up order if one is made; and
- one or more persons interested in the distribution of assets of the company is or are persons over whom the court can exercise jurisdiction.
Doyle J held that the Court should exercise its discretion to wind up the affairs of the Branch in circumstances where:
- the Bank had a sufficient connection with the Cayman Islands by virtue of the Branch having:
- entered into contracts governed by Cayman Law;
- taken Cayman deposits; and
- been regulated by the Cayman Islands Monetary Association;
- there was a reasonable possibility of the depositors benefitting from investigations and claims by the liquidators; and
- one of the petitioners was a Cayman Islands entity and the others had submitted to the jurisdiction by filing the petition.
Accordingly, Doyle J was satisfied that he should exercise his discretion to wind up the Branch on the basis that it was unable to pay its debts. He was also persuaded that it would be just and equitable to do so in order that an investigation could be undertaken in respect of the apparent removal of the Branch’s monies and assets from the Cayman Islands for the benefit of US-based depositors only.
Although the Cayman Court has wound up foreign companies in the past, this was the first time that it had applied the Latreefers test. Doyle J’s judgment therefore provides helpful guidance for creditors of foreign companies with connections to Cayman.
Campbells
