Court of Appeal Sinks BTA’s Bid to Re-Anchor in the BVI
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In our earlier article1, we reported that Joint Stock Company “BTA Bank” (“BTA”) had lost its anchor in the BVI Commercial Court. BTA then attempted to salvage it by way of appeal. However, the Eastern Caribbean Court of Appeal confirmed that the anchor is gone for good.
On 8 October 2026, the Court of Appeal dismissed BTA’s appeal on all grounds in Joint Stock Company “BTA Bank” v Mamesh & Ors (BVIHCMAP2024/0008). The Court ordered BTA to pay the respondents’ costs.
Charting the Course So Far
BTA alleges a letter of credit fraud between 2005 and 2009 and claims a loss of about US$230 million. It sued 54 defendants. To bring foreign commodity traders into the BVI proceedings, it relied on several BVI special purpose vehicles as “anchor defendants”. These were long-dissolved companies that BTA had restored to the register only days before issuing its claim. Several of them were struck off again soon afterwards, which suggests they were never very seaworthy.
In December 2023, Wallbank J set aside BTA’s ex parte permission to serve the claim out of the jurisdiction. He held that the court had no jurisdiction to hear the claim against the foreign defendants.
Shipwrecked! The Court of Appeal’s Verdict
- No anchor: BTA failed to show a real issue between it and the BVI SPVs that it was reasonable for the court to try. The Court endorsed the principles in Erste and Gunn v Diaz. Under those principles, the usefulness of trying the claim must be judged against the anchor defendant alone, ignoring the claims against the foreign defendants. Where an anchor defendant does not defend the claim, there is unlikely to be a real issue that it is reasonable for the court to try.
- Wrong port: The Court upheld the finding that the BVI was not clearly or distinctly the appropriate forum. The alleged scheme centred on Kazakhstan, and none of the witnesses were in the BVI. The SPVs’ only link to the BVI was that they were incorporated there. BTA’s own pleading described the choice of offshore SPV as “irrelevant”.
- Full and frank disclosure: The Court upheld the findings that BTA had breached its duty of full and frank disclosure, materially and deliberately. The judge had described as “inexcusable” BTA’s failure to draw the court’s attention to Erste and Gunn. The Court described the duty as a “strict duty”.
The Court also reiterated that an appellate court should be slow to interfere with a judge’s careful evaluative decision. It agreed with the respondents that the appeal was no more than an attempt to re-argue matters of evaluative judgment.
The decision gives useful appellate confirmation of how the BVI courts approach the necessary or proper party gateway. A company that is incorporated in the BVI but is otherwise dormant cannot be used just to bring well-resourced foreign defendants into BVI proceedings. Claimants applying without notice should also put adverse authorities and facts before the court, or risk losing permission altogether.
Maples Group acted for the second and third respondents, ADM Asia-Pacific Trading Pte Ltd and ADM Germany GmbH, with Thomas Grant KC. Matthew Freeman appeared alongside him.
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1https://maples.com/knowledge/claimants-all-at-sea-after-lost-anchor
