Declan Magennis, BDO CRI, Moderator David Butler, Harneys Mike Penner, Deloitte Shelley White, Walkers

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1 Declan Magennis, BDO CRI, Moderator David Butler, Harneys Mike Penner, Deloitte Shelley White, Walkers Recovery & Insolvency Specialists Association Quarterly Technical Session Q November 2014

2 Declan Magennis Senior Manager BDO CRI (Cayman) Limited 12+ years experience of insolvency and liquidations in Ireland and the Cayman Islands; Recent engagements include: Provisional Liquidations Official Liquidations Voluntary Liquidations Business Reviews Herald Fund SPC (In Official Liquidation)

3 Upcoming Events

4 Upcoming Events American Bankruptcy Institute Caribbean Insolvency Symposium 5 th 7 th February 2015 Westin Hotel, Grand Cayman Speakers include: David Walker, PricewaterhouseCoopers LLP Laura Hatfield, Solomon Harris Kieran Hutchinson, EY Marc Kish, Harneys Guy Manning, Campbells

5 INSOL San Francisco Annual Regional Conference 22 nd 24 th March 2015 Early Bird Deadline 15 th December The Fairmont, San Francisco Upcoming Events

6 Upcoming Events INSOL Bermuda Seminar Fairmount Hamilton Princess, Bermuda 4 th June Speakers include Jess Shakespeare, Kinetic Partners

7 or

8 Shelley White, Senior Counsel Shelley is a specialist advocate, with over 11 years' experience in insolvency litigation in the Cayman Islands and London. Recent engagements include: Representing the Liquidators of Saad Investments Company Limited and Others in the relevant liquidation proceedings and in the $9.2 billion claims brought against them in the Grand Court; Representing beneficiaries of a trust in proceedings where a trustee in bankruptcy makes claims to trust assets; and Representing Singularis Holdings Limited in its claim against Maan Al Sanea for breaches of fiduciary duty in his capacity as a director of the company.

9 David Butler Partner 10 years insolvency and commercial litigation experience. Recent instructions include: Re Rightway China Real Estate - resisting winding-up proceedings; Acting for the Joint Receivers of the Axiom funds; MOND v Wang defending constructive trust and bribery claims; Re HiTs Africa Ltd insolvent windingup

10 Mike Penner, Partner, Financial Advisory Financial Advisory leader for Deloitte in the Caribbean and Bermuda region; 20+ years experience in insolvency, forensic investigations, asset tracing and recovery; Currently, joint official liquidator or Controller of a number of Cayman Islands companies, and conducting a number of standalone investigations

11 Section 103 (1) This section applies to any person who, whether resident in the Islands or elsewhere- (a) has made or concurred with the statement of affairs: (b) is or has been a director or officer of the company; (c) is or was a professional service provider to the company; (d) has acted as a controller, advisor or liquidator of the company or receiver or manager of its property; (e) not being a person falling within paragraphs (a) to (c), is or has been concerned or has taken part in the promotion, or management of the company, and such person is referred to in this section as the relevant person.

12 Relevant Person (2) It is the duty of every relevant person to co-operate Definition of relevant person includes professional service provider Section 89 defines professional service provider as: a person who contracts to provide general managerial or administrative services to a company on an annual or continuing basis Does this include auditors?

13 Auditors Companies Bill, paragraph 12 The expression professional service providers is defined in section 89(1) to mean those who contract to provide general managerial or administrative services to a company on an annual or continuing basis. It is intended to catch e.g. mutual fund administrators and investment managers, but not lawyers and auditors. Jones J in ICP [2012 (1) CILR 383] Held that auditors are not professional service providers or advisors (and therefore don t fall into subsection (c) or (d))

14 Officers of the Company? Articles of Association Re Bristol Fund SICL / Singularis etc v. PwC

15 Examinations under section 103 (3) While a company is being wound up, the official liquidator may at any time before its dissolution apply to the Court for an order- (a) for the examination of any relevant person; or (b) that a relevant person transfer or deliver up to the liquidator any property or documents belonging to the company.

16 Jurisdiction under section 103 (7) The Court shall have jurisdiction- (a) to make an order under this section against a relevant person resident outside the Islands; and (b) to issue a letter of request for the purpose of seeking the assistance of a foreign court in obtaining evidence of a relevant person resident outside the jurisdiction.

17 Enforcement Use of Order 45 to obtain a penal notice Bad experiences in Middle East? Good experiences in Switzerland?

18 Limitations What can you do with the documents? Can you proceed in different jurisdictions? Privy Council Saad judgment

19 1782 (US) Bankers Trust Applications Norwich Pharmacal Orders Depositions Order 39 Other Options

20 Questions? Contact Details:

21 Networking Drinks!