As we emerge from a period of unprecedented global flux, some significant trends are being observed in the Asian dispute resolution space, with US-listed merger disputes, shareholder disputes and insolvency & restructuring-related instructions all on the rise.
However, high-calibre international finance centres are proving well placed to offer the stability needed to navigate such developments. The majority of new cross-border mandates for Ogier are coming from Mainland China, Taiwan, Hong Kong and Japan, with Singapore an increasing area of focus.
One specific trend has been an uptick in US-listed company merger disputes with an Asian nexus. Disputes involving corporate governance issues remain a significant feature of the work we are seeing; a recent example being Ogier's representation of an investor who successfully obtained a BVI Court order to set aside an improper private placement of shares in IsZo Capital LP v Nam Tai Property Inc & Ors.
In the bondholder sphere we have also been active, with our work on the fallout from the Peking University Founder Group administration being a particular highlight for Ogier's Hong Kong and BVI-based teams.
Shareholder valuation disputes - often referred to as section 238 cases in Cayman – have seen significant growth over the years, which is continuing. This trend is driven by a growing number of take-private mergers, where one of the features is shares being bought out by the majority. We have also witnessed investors taking investment positions when a merger event is anticipated, and their being prepared to engage in the Cayman litigation process to seek a judicial determination of fair value in excess of the merger price. Working with Ogier's corporate colleagues in this area, assisting with the deal stage as well as the evaluation of dispute queries - and how to navigate them - has been both enjoyable and professionally rewarding.
Another significant trend to emerge in the last year is insolvency/restructuring-related instructions. Given the unprecedented events of the last 18 months, it should be no surprise that as global economies emerge there will be elevated levels of distress. One of the things that the pandemic has shown us, though, is that offshore courts have been able to adapt effectively, and cases have not stalled but progressed with the help of technology such as Zoom, electronic court filings and other digital solutions.
As to the future, it is, of course, notoriously difficult to predict. However, at a macro level, our expectation is that the stability offered by offshore legal systems and services to cross-border business activity will continue to be drawn upon as economies across Asia emerge from the Covid induced economic damage and dislocation.