BERMUDA Trends and Developments Contributed by: John Wasty, Claire van Overdijk, Sam Riihiluoma, James Batten and Jordan Knight, Appleby
body of informed trustees is entitled to take and, if so, provide consent (the “narrow role”). The Supreme Court of Bermuda held that trust pro- tectors have a narrow role, and the Court of Appeal agreed with this view. The Privy Council will hear the appeal in late November 2025, and the result is eager- ly awaited by both the legal and trust industries. The second case is Credit Suisse Life (Bermuda) Ltd v Ivanishvili and others . Starting in 2005, a wealthy businessman (Mr Ivanishvili) made significant invest- ments through various investment companies that were part of a trust structure set up for his and his family’s benefit. An employee of Credit Suisse, who served as Mr Ivanishvili’s relationship manager, was convicted in Switzerland of fraud involving Mr Ivan- ishvili’s accounts. Subsequently, Mr Ivanishvili filed a lawsuit against Credit Suisse to recover the lost funds. At trial, the Ivanishvili parties obtained judgment against Credit Suisse for USD607 million on claims for breach of contract, breach of fiduciary duty, and fraudulent misrepresentation; the Court of Appeal upheld the breach of contract and breach of fiduci- ary duty claims. Credit Suisse appealed to the Privy Council on the ground that the judgment on the con- tractual claims is inconsistent with the contractual documentation, and there is no scope for any fiduci- ary duties. The appeal to the Privy Council was heard in June 2025, and judgment is awaited. In January 2025, one of the world’s longest-running and highest-value private wealth disputes was back before the Court of Appeal ( Wong v Grand View Pri- vate Trust Company Ltd and others ) to hear arguments on issues including: • whether mixed charitable and non-charitable pur- poses trusts are void for uncertainty; • whether the transfer of assets into purpose trusts was invalid because the transfers were governed by BVI law, which requires such transfers to be in writing; • regarding the validity of certain transfers into pur- pose trusts, what was the relevant law governing
mistake and/or lack of authority under the laws of Bermuda, BVI, and Taiwan. Judgment is anticipated shortly. Section D: Regulatory Bermuda’s robust business environment and financial services sector is regulated by equally robust statu- tory regimes that are actively enforced by a number of regulators, including: • the Bermuda Monetary Authority (Authority); • the Registrar of Companies (ROC); and • the National Anti-Money Laundering Committee (NAMLC). Recent court proceedings concerning digital asset businesses have clarified a number of important issues, including: the treatment of digital assets in the context of the winding-up of a digital asset business; and the nature of the Authority’s role when enforcing digital assets legislation (ie, whether the Authority is an adjudicating authority). In Re Bittrex Global (Bermuda) Ltd (in Liquidation ), the Court addressed how digital assets should be treated in a winding up, ruling against an application by joint provisional liquidators to sanction an interim distribution to shareholders. The Court confirmed that assets must be held and dealt with in accord- ance with the Digital Asset Business Act 2018 (DABA) and any Authority codes/guidance. This decision is important because the Fintech and DABA business sector is constantly evolving, and judicial guidance on the treatment of digital assets in a winding-up context will assist companies considering options, such as winding-up or enforcement by way of winding-up. In Lai and others v Bermuda Monetary Authority and Minister of Finance , the Court addressed a key issue: the Authority does not function as an “adjudicative authority” when it issues decision notices confirming its enforcement actions under DABA requirements. The Court clarified that the Authority acts as a regu- lator and does not determine civil rights. Instead, the powers to adjudicate and appeal rest with the statu- tory tribunal established under the DABA legislation. This decision will assist the regulator, companies, and
94 CHAMBERS.COM
Powered by FlippingBook