Ogier

The firm made a steady stream of hires and promotions in 2020, while one of its partners was appointed to Guernsey’s new Insolvency Rules Committee

History of the practice

Ogier's roots date back some 150 years, the firm having opened its doors in Jersey in 1867. In 1998, it became the first Jersey firm to set up shop in Guernsey; while in the mid-2000s a series of subsequent mergers saw Ogier gain footholds in the Cayman Islands, the British Virgin Islands (BVI) and Hong Kong. In the following years, the Channel Islands outfit continued to break new ground: it became the first offshore firm to open a representative office in Tokyo in 2008; the first to open an office in mainland China in 2011; and the first to establish an office in Luxembourg in 2012. As at 2019, the firm had a team of over 550 people around the world.

Ogier has since played a part in the development of insolvency law in the Caribbean offshore centres. Its multi-disciplinary team includes lawyers who also specialise in corporate, finance, litigation and arbitration.

The firm’s restructuring and insolvency work generally comes through its corporate practice, which focuses on investment funds, banking and finance, and litigation. It is often retained to defend such clients against winding up orders under local law.

Network

Ogier's restructuring and insolvency practitioners are spread across its main centres in Jersey, Guernsey, the BVI, the Cayman Islands, Hong Kong, London and Luxembourg.

Who uses it?

Banks, financial intermediaries, corporates and private wealth funds based offshore, as well as offshore subsidiaries of global financial groups.

Clients include Barclays, HSBC Bank and Deutsche Bank; Big Four firms Deloitte, EY and KPMG; and private equity group Carlyle Capital. In fact, most internationally known restructuring advisory firms have tapped Ogier at some point, from Alvarez & Marsal to Zolfo Cooper and Borrelli Walsh. Law firm clients include Kirkland & Ellis, Allen & Overy, DLA Piper, Linklaters, Akin Gump Strauss Hauer & Feld and Herbert Smith Freehills.

On the debtor side, Russian shipping and logistics group FESCO used the firm for advice on BVI law in a recent debt restructuring; as did Cayman-incorporated coking coal producer Mongolian Mining Corporation for Cayman law advice.

Historic track record

In 2007, Ogier advised Cayman Islands investor Absolute Capital Management on a US$1.3 billion out-of-court restructuring and defended the group in court against a creditors’ winding up petition. It was understood to be the first public fund restructuring deal following the global economic crisis.

In proceedings before the Royal Courts of Jersey and Guernsey in late 2015, an Ogier team acted for the liquidators of shipping group Huelin-Renouf. The team successfully obtained a pooling order so the assets of group subsidiaries in each jurisdiction could be combined for distribution to creditors. It marked the first successful cross-border pooling application in the Channel Islands.

The firm also advised HSBC on the granting of international security interests in respect of aircraft following the Cayman Islands’ adoption of the Cape Town Convention in 2015. The transaction was the first time that the granting of first and second ranking security over aircraft was considered in the Cayman Islands in the context of security registrations under the Convention.

More recently, Cayman partner Rachael Reynolds led the Ogier team advising Eleanor Fisher of Kalo (now at EY) and Simon Appell of AlixPartners as the joint provisional liquidators of submersible rig operator Ocean Rig and some of its subsidiaries. The main proceedings – which played out in the Cayman Islands – represented the first successful pre-appointment centre of main interests shift to the territory and the first time that a Cayman court sanctioned schemes of arrangement promoted by foreign companies. Reynolds also provided expert evidence in the New York Chapter 15 recognition of the main proceedings and schemes of arrangement, and successfully applied for the use of a novel court-to-court protocol between the Cayman and US courts.

In Guernsey, partner Simon Davies has been representing US private equity house The Carlyle Group and Carlyle Investment Management, defending claims worth US$1.5 billion brought by the liquidators of Guernsey affiliate Carlyle Capital Corporation. The case witnessed a 25-week trial, the largest-ever piece of substantive litigation in Guernsey, and also spawned ancillary proceedings in the US. In September 2017, the Royal Court of Guernsey dismissed a host of claims against senior executives of The Carlyle Group, a decision that was upheld on appeal in April 2019.

Recent events

The firm bolstered its litigation team in 2020 with the promotion of William Jones to partner in the Cayman Islands in April. It also strengthened its dispute resolution team in Jersey by hiring David Welford from Maples in June. Jeremy and Anna Snead also joined in London from Appleby’s Cayman Islands practice; while the Guernsey office promoted Bryan de Verneuil-Smith to partner in July. By September, the firm had also hired a former partner from Dutch firm NautaDutilh in New York, for its Luxembourg banking and finance team, Jad Nader.

Towards the end of the year, Ogier expanded yet again with BVI litigator Justin Davis coming from Carey Olsen in Hong Kong; it also promoted Michael Snape in Hong Kong and Sandie Lyne in Guernsey to its partnership.

In June 2020, Ogier partner Alex Horsbrugh-Porter was appointed to Guernsey’s first Insolvency Rules Committee, along with three other practitioners, to draft rules in support of incoming changes to the Channel Island’s insolvency regime.

Top cases of the research period

A team led by Kish helped BVI investor Safe Castle secure the winding up of Hong Kong-based investment manager Altair Asia in the Cayman Islands in December 2020, six months after its initial application failed. A different judge in the Grand Court initially found there was a bona fide dispute over the debt in July, but acknowledged his ruling was inconsistent with a previous decision from a Hong Kong court winding up Altair’s local affiliate at Safe Castle’s request in March 2020. On its second application to the Cayman Court, Safe Castle insisted it was owed US$17.5 million under a share redemption agreement and statutory demand that Altair had failed to pay, arguing that its petition was not founded on any debt arising under other redemption requests that had led to the earlier dismissal and conflicting court rulings.

Kish is also leading counsel to Chinese plastics manufacturer Sun Cheong Creative Development Holdings in a “soft-touch” provisional liquidation that it entered in the Cayman Islands in October 2020, before a Hong Kong court had time to hear a pair of winding up petitions against it. The judge in that case said Cayman courts might be reluctant to recognise Hong Kong liquidators appointed over a Cayman-incorporated company and agreed to appoint provisional liquidators ex parte, stalling the Hong Kong petitions until their appointment had concluded.

For a while now, Ogier has been representing Tianrui (International) Holding Company, a substantial shareholder of China Shanshui Cement Group (CSCG), in a complex, multi-jurisdictional dispute that centres around the shareholding and control of CSCG and a company that holds about 25% of its shares, China Shanshui Investment Company. Tianrui commenced winding up proceedings against CSCG in 2018, claiming it had been treated oppressively by other shareholders and lacked confidence in the company’s management. The following year, CSCG opened proceedings in Hong Kong, accusing Tianrui of unlawful conspiracy to take control of the company for its own benefit, and Tianrui responded with a Cayman action seeking to set aside convertible bonds it claims were issued for other shareholders to take control of CSCG. In April 2020, a Cayman judge refused to stay Tianrui’s winding up petition pending the Hong Kong proceedings, finding it would suffer prejudice. The Cayman Court of Appeal also blocked CSCG from transferring its Hong Kong listed shares because it would breach the unwinding transactions provisions under Cayman law in February of the same year.

Also in the Cayman Islands, new partner Jones is continuing to lead a team that is counsel to FFP as liquidators of locally incorporated Ardent Harmony Fund – a role they’ve held since 2016. Ogier helped the liquidators obtain an anti-suit injunction to prevent the fund’s creditors from continuing insolvency proceedings in Barbados, and has been overseeing things offshore while they pursue an action in New York against the fund’s former auditors, BDO, which they accuse of failing to spot a fraud. In November 2020, Ogier successfully blocked an attempt by BDO to injunct the liquidators and stall the New York action.

In Guernsey, partner Matthew Newman acted as counsel to Dutch oil company MND Georgia as purchaser of three subsidiaries of Guernsey-incorporated oil group CanArgo from its liquidators. The Royal Court of Guernsey approved the contested sale in October 2020, rejecting objections from Swiss majority creditor asset Achernar that it would impact a funding claim CanArgo held against MND. In approving the liquidators’ sale decision, the court applied principles similar to those it would follow when “blessing” a trustee’s “momentous decision”, bringing the trust and insolvency worlds closer together in Guernsey, Newman explained at the time.

And in the BVI, Ogier partner Nicholas Burkill provided counsel to two unnamed foreign lending institutions that secured Norwich Pharmacal relief in the form of third-party disclosure orders against the agents of four BVI companies in March 2020. The court declined to follow two English court decisions, Omar and Ramilos Trading, which held that the UK’s Crime Act of 2003 and Evidence Act of 1975 excluded Norwich Pharmacal relief for the purposes of foreign proceedings, finding that the applicants were not seeking information to obtain a judgment overseas, but to aid a “reasonably likely” enforcement overseas and in the BVI, to support a pre-existing BVI freezing order and to assist an arbitration.

With co-counsel from Hogan Lovells, BVI partner Brian Lacy also continues to represent Barclays in relation to the liquidation of Fairfield Sentry – an investment fund that was among the biggest investors in fraudster Bernie Madoff's Ponzi scheme.

Outside the research period, a team from Ogier successfully struck out a winding up petition in the Cayman Islands against Beijing-based, Cayman-incorporated investment holding company Grand State Investments – the parent of a Chinese kindergarten and school management services provider. In April 2021, a judge in the Grand Court threw out the petition from one of its shareholders, finding it was an abuse of process and that there were bona fide disputes over the debt in question.