10 Walkers' Lawyers Recognised in Asia Business Law Journal's Top 50 Offshore Lawyers 2022

10 lawyers across Walkers' Bermuda, Cayman, Hong Kong and Singapore offices have been recognised in the Asia Business Law Journal’s A-List of top offshore lawyers.

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Walkers Celebrates Record 72 Lawyer Rankings in Chambers Global Guide 2022

Walkers is celebrating a record year as 72 of its lawyers have been included in the guide, representing an 18% uplift from the 2021 guide.

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Walkers Launches Online AML Training Solution in Bermuda

Walkers Professional Services has announced that it has launched an innovative e-Learning Anti-Money Laundering Training platform in Bermuda.

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Walkers Maintains Tier 1 Ranking in The Legal 500 Europe, Middle East & Africa (EMEA) 2022 edition

Walkers Dubai has reinforced its preeminent position as the go-to offshore law firm in the region with a top tier status in Legal 500's EMEA 2022 edition.
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Walkers' Guide to Token Issuances, DAOs and Foundation Companies in the Cayman Islands

Since the inception of Walkers' Global Fintech Group in 2017, the virtual assets and blockchain sectors have grown materially and become increasingly sophisticated. In response to the demand from our clients we have worked on a wide range of mandates in this space. We have continually been at the forefront of innovation in this area and have advised our clients on how to navigate through the complex legal and regulatory issues that frequently arise. As a result we have obtained significant experience in advising clients on their journey from a small team looking for seed capital through to a fully decentralised operation.

In this guide we will consider the most common roadmap which we see used in connection with blockchain based projects. We will then look at some of the key questions which we regularly advise our clients on. These relate to why the Cayman Islands is the best choice for these types of projects, why foundation companies are increasingly used as legal wrappers for decentralised autonomous organisations ("DAOs") and how to undertake a token issuance in the context of the Virtual Assets (Service Providers) Act (the "VASP Act"). We will also consider the key service providers which need to be engaged to facilitate the structures discussed below.

 

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Privy Council considers the enforcement of foreign arbitral awards in the Cayman Islands

On 19 May 2022, the Privy Council's judgment in Gol Linhas Aereas SA (formerly VRG Linhas Aereas SA) (Respondent) v MatlinPatterson Global Opportunities Partners (Cayman) II LP and others (Appellants) (Cayman Islands) [2022] UKPC 21 provided guidance on the appropriate standard of due process to apply when considering challenges to enforcement of arbitration awards under the New York Convention.

The ruling unanimously upheld a decision of the Cayman Islands Court of Appeal to permit enforcement of a New York Convention award made in an ICC arbitration seated in Brazil, notwithstanding the debtor's arguments that (i) it was not a party to the arbitration agreement, (ii) there had been procedural defects in the arbitration hearing that afforded a right to resist enforcement, and (iii) that the ultimate award had been outside the scope of the submission to arbitration.

More interestingly, on the second of those issues the Board held that the parties had been afforded a sufficient opportunity to present their case despite the Tribunal having based its decision on a point of law which was not raised in the course of the arbitration hearing, and which was then not raised by the Tribunal with the parties to invite their comments prior to issuing its decision. As such, the resisting debtor had no opportunity to address the issue in argument.

Notwithstanding that position, the Board permitted enforcement of the award in the Cayman Islands because the tribunal made its decision on a factual basis which was well understood by the parties and fully argued during the hearing–the only failure was to afford the parties an opportunity to make legal arguments. A distinction was drawn between cases in which a party was denied the opportunity to answer a significant factual allegation or evidence (which the Board considered to be "…fundamentally unfair") and cases where the complaint related to legal reasoning. It was noted that in civil law jurisdictions courts frequently took a more proactive approach to applying the law than was familiar in common law systems – "…it is expected that the judge will bring his or her own knowledge of the law to bear in deciding a case, independently and in addition to the legal arguments and materials adduced by the parties".

It was accepted that that as a general rule of Brazilian law, a tribunal was not obliged to inform the parties that a particular legal theory or legal rule would be applied prior to making a decision on the basis of that theory or rule, and as such there had not been any violation of due process. The Board were at pains to point out that in looking at the standard of fairness that should be applied to international arbitration, whilst it was not simply a search for the lowest common denominator of standards in differing national systems, the court should attempt to identify a set of minimum requirements which would "generally, even if not universally, be regarded throughout the international legal order as essential to a fair hearing". What was not an adequate basis for challenge was merely demonstrating that the process did not conform with the approach to due process in the legal culture of the state where the award was sought to be enforced.

As such, whilst candidly accepting that the case was a difficult one, the Board ultimately therefore held that the parties had been given an adequate opportunity to present their case before the Tribual (and subsequently the courts in Brazil), and thus that the Cayman Islands Court of Appeal was correct to enforce the arbitration award in the Cayman Islands. In order to justify a conclusion that a party had been denied the opportunity to present its case, it was said that "..what is required is proof, not merely that a procedure was adopted which was irregular or undesirable, but of fundamental unfairness which goes to the essence of the right to be heard".

Whilst issued in the context of enforcement in the Cayman Islands, this decision will be of interest to practitioners in all common law jurisdictions who have implemented the New York Convention.

Bermuda – An Ideal Location for International Business

This briefing explains Bermuda’s adoption of rigorous international tax and regulatory standards, which, in conjunction with local laws, make Bermuda an ideal location for investment funds and other investment and finance vehicles. Bermuda is a leading global finance centre with top-tier financial services professionals. International companies select Bermuda as their jurisdiction of choice for its political and financial stability that facilitates investment in a tax-neutral environment whilst maintaining best-in-class regulatory standards.

 

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Cayman Update: Return of Mistaken Payments held on Constructive Trust

On 26 April 2022, Chief Justice Smellie QC in Re Premier Assurance Group SPC Ltd. (in Official Liquidation) sanctioned a decision by the joint official liquidators ("JOLs") of Premier Assurance Group SPC Ltd (in Official Liquidation) (the "Company") to return (or procure the return of) certain payments held by or on behalf of the Company referable to one of its segregated portfolios, Premier Assurance Segregated Portfolio ("PASP"), to the respective payors on the basis that such sums were paid by mistake. The Court held that such payments received after the presentation of the winding up petition against the Company on 26 October 2020 (the "Winding Up Petition") are held by the Company (referable to PASP) as constructive trustee from the moment that such funds were received.

In summary, the JOLs sought Court sanction to return (or procure the return of) over 6,000 premium payments held by or on behalf of the Company referable to PASP, which had been received from participants who hold or have held insurance policies referable to PASP (the "Participants"). Such payments (which were referred to collectively as the "Mistaken Payments") were made after the deemed commencement date of the winding up of the Company on 26 October 2020 and generally represented direct debits which had not been cancelled by the Participants.

 

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Offshore Perspectives - Year of the Tiger Trends 2022

The continuing impact of Covid-19 is clearly among the big talking points for 2022, with several questions arising: will new variants emerge, what steps will governments take to prevent subsequent outbreaks, and what impact will it have on industries? Also, there are other macro-economic issues to consider, including the elections in Brazil and France, and economic rumblings in China.

Looking towards the year ahead, from our position as primarily offshore lawyers, we have identified some specific trends on the horizon for the benefit of all our clients – onshore counsel, banks, asset managers, trustees, corporates, insolvency practitioners and individuals.

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