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Michael Driscoll QC of Maitland Chambers, who acted for the appellant, considers the decision in Vizcaya Partners Ltd v Oicard and others and its practical implications.
Vizcaya Partners Ltd v Oicard and another  UKPC 5,  All ER (D) 66 (Feb)
The Privy Council allowed an appeal arising out foreign insolvency proceedings concerning a company owned by Bernard Madoff.
The trustee in bankruptcy of the company had sought to enforce a default judgment obtained in New York against the appellant company in Gibraltar, where it held substantial assets. The trustee’s application for summary judgment was allowed in part by the Court of Appeal of Gibraltar, which ruled that the trustee’s claim that the appellant had agreed to submit to the jurisdiction of the state of New York had a reasonable prospect of success.
The Privy Council, allowing the appellant’s appeal, held that, on the facts, there was no basis for the assertion that there was a contractual term that the appellant had submitted to the New York jurisdiction. It held that an agreement to submit to a jurisdiction of a foreign court did not have to be contractual in nature and might be implied as a matter of fact, or by law. In any event, even if a jurisdiction agreement was to be implied, it would not apply to the present avoidance proceedings.
The appellant is an offshore investment fund which invested $328m with Bernard L Madoff Investment Securities Limited (BLMIS). The appellant had been repaid $180m of its investment by BLMIS before, in December 2008, it became public knowledge that Madoff had operated a huge fraudulent Ponzi scheme, through BLMIS, by which he had defrauded investors, like the appellant, of billions of dollars. Irving Picard (the trustee), and respondent to the appeal, was appointed as trustee in BLMIS’s liquidation in the
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Stephen qualified as a solicitor in 2005 and joined the Restructuring and Insolvency team at Lexis®PSL in September 2014 from Shoosmiths LLP, where he was a senior associate in the restructuring and insolvency team.
Primarily focused on contentious and advisory corporate and personal insolvency work, Stephen’s experience includes acting for office-holders on a wide range of issues, including appointments, investigations and the recovery and realisation of assets (including antecedent transaction claims), and for creditors in respect of the impact on them of the insolvency of debtors and counterparties.
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