The Privy Council Decision: Shell v Krys

On 26 November 2014 the Judicial Committee of the Privy Council (the "Privy Council") handed down its judgment in the appeal brought by Stichting Shell Pensioenfonds ("Shell") against the joint liquidators of Fairfield Sentry Ltd ("Fairfield Sentry") (the "Liquidators"), the largest feeder fund to Bernard L. Madoff Investment Securities LLC ("BLMIS").¹ 

The judgment raises and settles important issues as to the proper treatment of foreign proceedings brought in the context of an underlying BVI liquidation.  It also provides guidance as to what amounts to a submission to jurisdiction in the context of a BVI liquidation and court proceedings generally. 

Background

Shell was an investor in BLMIS via a shareholding in Fairfield Sentry.  The day after Mr Madoff's arrest in December 2008, Shell successfully applied to the Amsterdam District Court for permission to obtain pre-judgment garnishment or conservatory attachment orders over Fairfield Sentry's assets (the "