Sian Participation Corp (In Liquidation) (Appellant) v Halimeda International Ltd (Respondent) (Virgin Islands)
Case ID: JCPC 2023/0055
Jurisdiction: Court of Appeal of the Eastern Caribbean Supreme Court (British Virgin Islands)
Case summary
Issue
- What test should the court apply when exercising its discretion to make a liquidation order where the debt on which the application is based is subject to an arbitration agreement and is said to be disputed (notwithstanding that dispute is not on genuine and substantial grounds)?
- Did the judge in this case conclude that the court should refuse to consider the impact of the arbitration agreement between the parties because it had been raised too late and, if he did so find, was he wrong to do so?
- Does this appeal directly or indirectly involve a claim to or question respecting property or a right of the value of £300 sterling or upwards so as to entitle the appellant to an appeal as of right under section 3(1)(a) of the Virgin Islands (Appeals to the Privy Council) Order 1967 (the "1967 Order")?
Facts
In December 2012, the respondent advanced a loan of USD 140m to the appellant (the "Loan"). The agreement governing the Loan (the "Facility Agreement") included a clause providing that "any claim, dispute or difference of whatever nature arising under, out of or in connection with" the Facility Agreement would be referred to arbitration (the "Arbitration Agreement").
The Loan has not been repaid. In February 2020, the respondent sent a letter to the appellant demanding payment of the debt under the Facility Agreement (the "Debt"). As at 15 December 2020, the total sum claimed was approximately USD 226m. The appellant disputes that the Debt is due and payable on the basis of a cross-claim and/or set-off.
In September 2020, the respondent applied to have liquidators appointed in respect of the appellant pursuant to sections 159(1)(a) and 162(1)(a) of the BVI Insolvency Act 2003. Following a hearing of the application, Mr Justice Wallbank (the "Judge") delivered an oral judgment in May 2021 holding, among other things, that the appellant had failed to show that the Debt was disputed on genuine and substantial grounds. The Judge ordered the appellant to be put into liquidation.
In November 2022, the Court of Appeal of the Eastern Caribbean Supreme Court dismissed the appellant's appeal against the Judge's decision. In December 2022, the Court of Appeal dismissed the appellant's application for leave to appeal to the Judicial Committee of the Privy Council (the "JCPC") as of right under section 3(1)(a) of the 1967 Order.
In November 2023, the JCPC granted the appellant permission to appeal in respect of Issues (1)-(3) above.
Parties
Appellant
Sian Participation Corp (In Liquidation)
Respondent
Halimeda International Ltd
Appeal
Justices
Lord Reed, Lord Lloyd-Jones, Lord Briggs, Lord Hamblen, Lord Burrows
Hearing start date
19 March 2024
Hearing finish date
19 March 2024
| Watch hearing | ||
|---|---|---|
| 19 March 2024 | Morning session | Afternoon session |
Judgment details
Judgment date
19 June 2024
Neutral citation
[2024] UKPC 16
- Judgment (PDF)
- Press Summary (PDF)
- Judgment on The National Archives (HTML version)
- Judgment on BAILII (HTML version)
| Watch Judgment summary | |
|---|---|
| 19 June 2023 | Judgment summary |