08 July 2026
BVI holds firm on jurisdiction for claims under the BCA Transitional CPR provisions – old rules vs revised rules Forum non conveniens Takeaways for practitioners
Exploring Offshore Litigation
About
In the recent decision of the BVI Commercial Court in Transcience Investments Limited v Greentown Holdings (BVI) Inc, the Court dismissed a jurisdiction challenge and related stay application by the Third Defendant, confirming that minority shareholder remedies under the BVI Business Companies Act, Revised Edition 2020 are to be tried in the BVI, while also clarifying how the ECSC CPR 2023 transitional provisions operate.
The case will be of particular interest to those bringing or defending minority shareholder and director-duty claims involving BVI companies with foreign operations, and to practitioners navigating the ECSC CPR 2023 transitional provisions.
Harneys acts for Transcience, a BVI company and minority shareholder of a BVI holding company, Greentown BVI, brought claims alleging that the affairs of Greentown BVI had been conducted in a manner that was oppressive, unfairly discriminatory and/or unfairly prejudicial to it as a minority shareholder. The causes of action were: (i) unfair prejudice under section 184I of the BCA; (ii) breach of directors' duties under section 184B of the BCA; and (iii) unlawful means conspiracy.
The Third Defendant, a resident of Pakistani with dual Pakistani and Swiss nationality, is a director of Greentown BVI and the ultimate beneficial owner of its majority shareholder. His notice of application sought: (a) a declaration that the claim was not a proper one for the BVI Court to try; or alternatively (b) a stay on forum non conveniens grounds in favour of Pakistan.
A preliminary issue was whether the old ECSC CPR 2000 or the revised ECSC CPR 2023 governed service on the Third Defendant. The claim was issued in February 2023, before the Revised Rules came into effect on 31 July 2023. Under the old rules, Transcience would have required permission to serve the Third Defendant out of the jurisdiction. The Revised Rules, however, permit service out of the jurisdiction without a prior application, subject to filing a certificate of service out.
The Third Defendant argued that, by virtue of the transitional provisions in Part 75 of the Revised Rules, the old rules continued to apply and that Transcience's failure to obtain permission to serve out rendered service irregular. The Court held that it was not open to raise a freestanding service irregularity point because it had not been properly made in the notice of application. In any event, applying a purposive construction consistent with the Overriding Objective of the CPR, Justice Mangatal held that service under the Revised Rules was not precluded by Part 75. She emphasised that, save in proceedings where a trial date had been fixed, the clear intention behind the transitional provisions is that the Revised Rules and their principles should apply as soon as possible, including to pre-commencement proceedings without a trial date.
On the substance of the jurisdiction challenge, the Court treated the application as one under CPR 9.7 and/or 9.7A of the old rules (unchanged as CPR 9.7 and 9.8 under the Revised Rules). In that context, the burden rested on the Third Defendant, as the party seeking the declaration and stay, to establish that Pakistan was clearly or distinctly more appropriate forum. Applying the principles in Spiliada Maritime Corporation v Cansulex Ltd and Livingston Properties Equities Inc v JSC MCC Eurochem, the Court held that the Third Defendant had not discharged that burden.
Key findings included:
Pakistan was not an available forum. Two of the three claims – those under sections 184I and 184B of the BCA – are statutory remedies conferred by the BVI legislature on members of BVI companies. They can only be brought in the BVI and are not available in Pakistan. The Court also noted that the prior Lahore proceedings, which concerned different rights and were brought by Transcience's UBO in his own name, had been discontinued, and that Pakistan was not an available forum for Transcience's BCA claims.
Separate legal persona...
The case will be of particular interest to those bringing or defending minority shareholder and director-duty claims involving BVI companies with foreign operations, and to practitioners navigating the ECSC CPR 2023 transitional provisions.
Harneys acts for Transcience, a BVI company and minority shareholder of a BVI holding company, Greentown BVI, brought claims alleging that the affairs of Greentown BVI had been conducted in a manner that was oppressive, unfairly discriminatory and/or unfairly prejudicial to it as a minority shareholder. The causes of action were: (i) unfair prejudice under section 184I of the BCA; (ii) breach of directors' duties under section 184B of the BCA; and (iii) unlawful means conspiracy.
The Third Defendant, a resident of Pakistani with dual Pakistani and Swiss nationality, is a director of Greentown BVI and the ultimate beneficial owner of its majority shareholder. His notice of application sought: (a) a declaration that the claim was not a proper one for the BVI Court to try; or alternatively (b) a stay on forum non conveniens grounds in favour of Pakistan.
A preliminary issue was whether the old ECSC CPR 2000 or the revised ECSC CPR 2023 governed service on the Third Defendant. The claim was issued in February 2023, before the Revised Rules came into effect on 31 July 2023. Under the old rules, Transcience would have required permission to serve the Third Defendant out of the jurisdiction. The Revised Rules, however, permit service out of the jurisdiction without a prior application, subject to filing a certificate of service out.
The Third Defendant argued that, by virtue of the transitional provisions in Part 75 of the Revised Rules, the old rules continued to apply and that Transcience's failure to obtain permission to serve out rendered service irregular. The Court held that it was not open to raise a freestanding service irregularity point because it had not been properly made in the notice of application. In any event, applying a purposive construction consistent with the Overriding Objective of the CPR, Justice Mangatal held that service under the Revised Rules was not precluded by Part 75. She emphasised that, save in proceedings where a trial date had been fixed, the clear intention behind the transitional provisions is that the Revised Rules and their principles should apply as soon as possible, including to pre-commencement proceedings without a trial date.
On the substance of the jurisdiction challenge, the Court treated the application as one under CPR 9.7 and/or 9.7A of the old rules (unchanged as CPR 9.7 and 9.8 under the Revised Rules). In that context, the burden rested on the Third Defendant, as the party seeking the declaration and stay, to establish that Pakistan was clearly or distinctly more appropriate forum. Applying the principles in Spiliada Maritime Corporation v Cansulex Ltd and Livingston Properties Equities Inc v JSC MCC Eurochem, the Court held that the Third Defendant had not discharged that burden.
Key findings included:
Pakistan was not an available forum. Two of the three claims – those under sections 184I and 184B of the BCA – are statutory remedies conferred by the BVI legislature on members of BVI companies. They can only be brought in the BVI and are not available in Pakistan. The Court also noted that the prior Lahore proceedings, which concerned different rights and were brought by Transcience's UBO in his own name, had been discontinued, and that Pakistan was not an available forum for Transcience's BCA claims.
Separate legal persona...