Divergence between England & Wales and the British Virgin Islands in the Treatment of Jurisdiction and Arbitration Clauses in Insolvency Proceedings
Introduction
Any insolvency lawyer in the British Virgin Islands
(“BVI”) or in England & Wales
(“E&W”) will tell you that the
most common ground for seeking to set aside a statutory demand, or
opposing the appointment of a liquidator, is an allegation that the
debt is disputed. They will also tell you that the test is
whether the Court is satisfied that the debt is disputed on
substantial and bona fide grounds. The concept of a
substantial and bona fide dispute is so entrenched in the
authorities that it seems uncontroversial. Yet the Court of
Appeal in each jurisdiction has come to a strikingly different
conclusion about what it really means when there is a jurisdiction
or arbitration clause.
