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Acting Justice Brian Moree, in a February 9 ruling, found that the Supreme Court was unable to recognise the liquidators for Caledonian Bank due to the fact that the Bahamas has yet to determine which countries can receive such assistance.
Although the Companies Act Winding-Up Amendment Act 2011 was passed into law, the Liquidation Rules Committee has yet to designate which nations are to be listed as ‘relevant foreign countries’ and qualify for assistance from the Bahamian courts.
Acting Justice Moree described the Liquidation Rules Committee as the “new gatekeeper” to the provision of court assistance for foreign liquidators, and found that the Supreme Court was not able to “usurp” its functions.
This is what happens when the Executive and Legislative Branches of Government are largely derived from Parliamentarians making ,000 a year.
Acting Justice Moree said the SEC’s February 6, 2015, lawsuit against Caledonian Bank sparked a ‘run’ by depositors who, having lost confidence in the institution, sought to quickly withdraw their funds.
The bank was placed into court-supervised liquidation in the Cayman Islands, and the liquidators’ attention was subsequently drawn to the Bahamas by the loans it had made within this jurisdiction.
“However, the critical question in this case is did the common law power to grant recognition and assistance to foreign office-holders (whether or not they are foreign representatives as defined in section 253 of the Bahamian Act) in insolvencies with an international element survive the enactment of the statutory scheme in Part VIIA? “Put another way, does the court in the Bahamas have the power under the common law to grant the petitioners the relief sought in the amended petition (or similar relief) in circumstances where such relief is not available under section 254 of the Bahamian Act?
” Mrs Rolle-Kapousouzoglou argued that there had “been no express or implied repeal” of common law principles by the 2011 Act.
As a result, Lennox Paton, the Bahamian law firm acting for the Caledonian Bank liquidators, filed a petition with the Supreme Court on June 9, 2015, seeking recognition for them in the Bahamas under the 2011 Act.Praising Mrs Rolle-Kapousouzoglou’s arguments, Acting Justice Moree concluded: “I am not persuaded that there exists today in this jurisdiction a parallel common law route” for foreign liquidators to obtain recognition and assistance from the Supreme Court outside the 2011 Act’s process.He explained that the 2011 Act overrode common law, limiting its application to liquidators who were not from designated ‘relevant foreign countries’.Ignoring this, Acting Justice Moree added, would be “tantamount to ignoring the legislative intervention of Parliament” and defeat its policy, which was to restrict the provision of assistance in cross-border insolvency cases.“I have concluded that since the coming into force of Part VIIA, it is no longer open to the court to recognise and grant assistance to foreign insolvency proceedings on the basis of the common law principle of modified universalism in cases which fall outside the provisions of sections 25 3- 255 of the Bahamian Act,” he ruled.
While the Parliamentarians are pontificating on petty political nonsense, going to Cabinet and doing their "day jobs" they just don't have time to ensure the details of legislation that was passed is being properly executed.