2019 Caribbean Insolvency Symposium, 2015

In 2009, Fairfield Sentry Ltd.’s liquidators commenced litigation in the BVI and the U.S. to recover more than $6 billion from redeeming investors. This panel discussion will discuss the basis for clawback claims generally, the recent decision by the Privy Council, and the impact of the decision for trustees, liquidators and redeeming investors going forward.

Debt recovery in the Caribbean can sometimes require more from creditors than simply having a well-drafted set of documents containing prescribed remedies. The astute creditor should take into consideration several factors when seeking to resolve and satisfy its outstanding claims against an insolvent business entity, including the impact on the debtor’s business, an awareness of local issues, and an appreciation for the importance of relationships in preserving and fostering long-term business relationships.

The winds of change have blown strongly through the Caribbean recently, with new bankruptcy laws having been passed, or soon to be passed, in many jurisdictions over the last 12-18 months. Two of these new laws were modeled after Canadian law. This panel will examine the provisions of the new laws in broad terms and undertake a brief “compare and contrast” exercise to discuss the new laws in relation to the U.S. Bankruptcy Code and restructuring statutes in other Caribbean jurisdictions that take English law as their model.

This panel will review and discuss the Puerto Rico Public Corporation Debt Enforcement and Recovery Act, which was signed into law on June 28, 2014. The constitutionality of this Act has already been challenged by at least three separate lawsuits brought by different bondholder groups. A special courtroom has been designated in the San Juan Superior Courthouse, and two judges have been specially designated to deal with any filings brought pursuant to this new Act in the Commonwealth Courts.