Ogier

The offshore firm resumed acting for the BVI-incorporated guarantor of New York law-governed debt issued by Brazilian oil group Constellation in a “soft-touch” mirroring scheme

History of the practice

Ogier's roots date back some 150 years, 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.

In June 2022, the firm launched in Ireland by merging with locally based Leman Solicitors, which gave it four new partners with restructuring experience in the country.

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 KC led an 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 represented 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

After a very busy period for hires and promotions in 2020, Ogier had a relatively quiet year on that front in 2021.

Its new Ireland venture, Ogier Leman, added four partners with restructuring experience to the fold in 2022, however: Ronan McGoldrick and Elaine White in the dispute resolution team, and in the merged firm’s corporate department, the departmental head Dominic Conlon and partner Edon Byrnes.

Top cases of the research period

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

In early January 2022 on the other hand, the firm succeeded in winding up Chinese menswear retailer Evergreen International in the Cayman Islands on behalf of Hong Kong-based bondholder client CIS Securities Asset Management. Evergreen tried to adjourn the petition so it could pursue a light-touch provisional liquidation instead, but the Grand Court found that the debtor had failed to offer “even the outline of a restructuring proposal” since hiring advisers in April 2021.

Global head of dispute resolution Marc Kish was lead counsel to Chinese plastics manufacturer Sun Cheong Creative Development Holdings in a soft-touch provisional liquidation that it entered 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. Sun Cheong’s shares were delisted from the Hong Kong Stock Exchange in May 2022.

Ogier continues to represent Tianrui (International) Holding Company, a substantial shareholder of China Shanshui Cement Group (CSCG), in a complex, multijurisdictional 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. In 2022, the Cayman Court of Appeal struck out Tianrui’s dilution claim, but left it open to the shareholder to pursue the winding-up.

With co-counsel from Hogan Lovells, BVI partner Brian Lacy continued 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 of the research period, Ogier was instructed on several large matters, particularly as counsel to the BVI liquidators of cryptocurrency hedge fund Three Arrows Capital (3AC). At the time of writing, the BVI liquidators had been recognised in the US and Singapore, and had applied for recognition in the Cayman Islands. The US, Singaporean and BVI courts were also in the process of entering a protocol to coordinate communication between them in the liquidation.

In 2022, partner Grant Carroll in the BVI also resumed his role as counsel to Olinda Star, a local subsidiary of international oil group Constellation, as it extended a soft-touch provisional liquidation begun in 2019, to complete a local scheme to mirror a Brazilian restructuring of certain New York law-governed notes it had guaranteed. As in Constellation’s 2019 restructuring, the newly revived Brazilian and Cayman proceedings applied for Chapter 15 recognition in New York. The 2019 restructuring featured the first-ever soft-touch provisional liquidator appointment in the BVI.