Stichting Shell Pensioenfunds v Krys

A recent decision of the Privy Council in Stichting Shell Pensioenfonds v Krys and another (British Virgin Islands) [2014] UKPC 41 clarifies a liquidator's authority in relation to anti-suit injunctions and provides guidance as to what amounts to a submission to the jurisdiction within the liquidation process.

The case arose out of the liquidation of Fairfield Sentry ("Fairfield"), a BVI feeder fund of the collapsed Madoff fund. Fairfield Sentry had assets in its own name at a Dutch bank account in an account in Ireland ("the bank account"). The appellant (Shell), a Dutch pension fund which had bought shares in Fairfield, was granted conservatory attachments (security for a claim before judgment) over Fairfield's assets, being the cash balance of US$71 million held in the bank account. The effect of the attachments was that, if Shell succeeded in its substantive claim in the Dutch courts (for breach of representations and warranties) Fairfield would be able to satisfy