Shell Pensioenfonds V. US: A Case Study

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When a company being wound up in a given jurisdiction, an anti-suit injunction can be sought against relevant creditors or members to prevent them from pursuing proceedings in another jurisdiction in view of securing an unjustifiable priority in the liquidation. Such was the scope of the Privy Counsel's decision of 26 November 2014 in Stichting Shell Pensioenfonds v Krys and another (British Virgin Islands) [2014] UKPC 4 in what is an interesting instance of the application of anti-suit injunctions within the insolvency framework. Facts Fairfield Sentry Ltd ("Fairfield"), a mutual fund incorporated in the BVI, was the largest feeder fund of the Bernard L. Madoff Investment Securities LLC ("BLMIS"). Stichting Shell Pensioenfonds ("Shell"), a Dutch…show more content…
As the Attachments did not create any proprietary interest the Board found that the assets to which they relate should be included in the mandatory statutory trust resulting from the BVI winding up order; (b) the equitable jurisdiction of the court to uphold statutory distribution: Based, inter alia, on the case of Carron Iron Company Proprietors v Maclaren (1855) 5 HLC 415 the Board considered that the granting of the sought injunction was justified where a creditor invoked a foreign jurisdiction to bypass the statutory scheme of distribution. It considered that failure to do so would "disturb the general principle of equal distribution which the court is always anxious to enforce". Exercising the Anti-Suit Jurisdiction The Privy Council found that the jurisdiction to grant the relief sought should be exercised

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