November 22, 2022
In a unanimous ex tempore decision the Eastern Caribbean Court of Appeal (Pereira CJ, Ward JA, and Ellis JA) on 21 November 2022 stayed the winding-up order against Vidatel Limited, the appellant, pending its appeal. Applying the guidelines on stays pending appeal in C-Mobile Services Ltd v Huawei Technologies Co. Ltd (BVIHCMAP 2014/0017), the Court held that Vidatel Limited’s strong prospects of success on appeal justified a stay. In particular, the Court considered that Vidatel Limited had strong prospects of succeeding in its argument that the BVI High Court had lacked jurisdiction to wind it up because the application to wind up had been deemed dismissed through effluxion of time pursuant to section 168 of the BVI’s Insolvency Act 2003. The winding-up order already having been stayed (by the judge below) for over a year, the winding-up proceedings are a notable example of a debtor avoiding liquidation notwithstanding an undisputed debt, owing to special circumstances. The winding-up proceedings arise from a shareholder dispute between among others Vidatel Limited and the respondent to the appeal, PT Ventures SGPS SA, concerning a major Angolan telecoms company, Unitel SA. An ICC arbitration award against Vidatel Limited and others for US$646 million was recently upheld by the Paris cour de cassation, which decided major issues in French arbitration law: the power of the ICC to appoint a tribunal, and the scope of an arbitrator’s duty of disclosure. In the BVI winding-up proceedings Vidatel Limited did not dispute its unpaid liability under the award and contended that it was prevented from paying by the actions of PT Ventures SGPS SA and the Angolan State. Hermann Boeddinghaus KC represented Vidatel Limited before the Eastern Caribbean Court of Appeal, assisted by Andrew Rose.