Foreign trust assets and liquidations—when beneficiaries’ rights might vanish (Akers v Samba Financial Group)

Foreign trust assets and liquidations—when beneficiaries’ rights might vanish (Akers v Samba Financial Group)

Daniel Smith, counsel, and Kavan Bakhda, associate, at Latham & Watkins examine the Supreme Court’s judgment in Akers v Samba Financial Group in relation to the effect of section 127 of the Insolvency Act 1986 (IA 1986) and the lex situs on transfers of trust property.

Original news

Akers and others v Samba Financial Group [2017] UKSC 6, [2017] All ER (D) 06 (Feb)

The Supreme Court allowed an appeal by the appellant Saudi Arabian bank and held that a trustee’s transfer to it of shares he was alleged to have been holding on trust for the fourth respondent, a Cayman Islands company in liquidation, had not been a disposition within the meaning of IA 1986, s 127. Therefore, the claim by the fourth respondent and its liquidators that the transfer was void had no prospect of success.

How did the issue arise?

The issue arose out of the long-running multi-billion fallout concerning the Al-Gosaibi family, Maan Al Sanea and the Saad Group of companies. In 2009 the Grand Court of the Cayman Islands ordered Saad Investments Company Limited (SICL) to be wound up. Mr Al Sanea, a Saudi Arabian national, held shares in certain Saudi Arabian companies which SICL and the liquidators alleged he held for SICL on Cayman Islands trusts, and which they alleged Samba Financial Group (Samba), a Saudi Arabian bank, received from Mr Al Sanea during the winding up. Accordingly, they claimed in the English court against Samba pursuant to IA 1986, s 127, which provides that ‘…[in] a winding up by the court, any disposition of the company’s property […] made after the commencement of the winding up is, unless the court otherwise orders, void’.

Can you summarise the previous decisions in the lower courts?

Samba applied to the English court to stay the claim on grounds of forum non conveniens, that it was more appropriate for the Saudi Arabian court to hear the dispute. The Chancellor found that the alleged

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About the author:

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.