On 8 August 2013, the Court of Appeal issued its ruling in the
case of Microsoft Corporation v Vadem Ltd1 . The
judgment at first blush appears quite definitive, that
"BVI law does not permit double derivative
proceedings".
The manner in which the case was presented however and recent
developments in English case law suggest that, whilst the BVI
Business Companies Act 2004 does not provide for double derivative
actions, at common law the jurisdiction may well live on.
Background
At first instance, Microsoft made an application for leave under
section 184C to bring a derivative claim in Delaware in the name of
and on behalf of Vadem Ltd ("Vadem
BVI"). Microsoft held just under 12% of Vadem BVI.
Vadem BVI itself had a wholly owned subsidiary, Vadem Inc
("Vadem California"), which was the
owner of certain patents that were subsequently transferred to
another company called Amphus.
