Court of Appeal rules that Black Swan was wrongly decided
In Broad Idea International Limited v Convoy Collateral Limited , the Court of Appeal considered the issue of whether the BVI court has jurisdiction to grant an interlocutory injunction (a freezing order in this case) against a person resident in the BVI against whom no substantive proceedings have been pursued anywhere in the world, and whether any such jurisdiction extends to granting an injunction in aid of foreign proceedings to which that person is not a party. The appeal in effect was a direct challenge to the Black Swan jurisdiction, named after the 2010 decision of the BVI Commercial Court in Black Swan Investment I.S.A. v Harvest View Limited et al. The decision has been relied on in the BVI as authority for the existence of the jurisdiction in issue.
The Court’s resolution of the jurisdiction issue was two-fold. First, the Court observed that the jurisdiction to grant interlocutory injunctions under section 24 of the Eastern Caribbean Supreme Court (Virgin Islands) Act is a statutory one which is premised on the existence of underlying substantive proceedings. In the absence of such proceedings, the Court stated that the BVI court has no jurisdiction to grant an interlocutory injunction. Second, the Court examined whether the BVI court has jurisdiction to grant interlocutory injunctions in aid of foreign proceedings. The Court expressed that section 24 which clothes the court with the jurisdiction to grant interlocutory injunctions makes no reference to the grant of injunctions in aid of foreign proceedings. Further, the Court noted that in other common law jurisdictions, such as the United Kingdom and the Cayman Islands, legislatures have made express statutory provisions to empower courts to grant injunctions in aid of foreign proceedings, but the BVI Legislature has not given the court such power. The Court held that, given the historical statutory jurisdiction underpinning the grant of such interlocutory relief, the BVI court has no jurisdiction to grant interlocutory injunctions in aid of foreign proceedings.
It is therefore settled that Black Swan was wrongly decided and thus, the BVI court has no jurisdiction to grant a freestanding interlocutory injunction in aid of foreign proceedings.