Henderson J
```html <table> <tr> <td>5/6/08</td> </tr> <tr> <td>IN THE GRAND COURT OF THE CAYMAN ISLANDS</td> </tr> <tr> <td>HOLDEN AT GEORGE TOWN, GRAND CAYMAN</td> </tr> <tr> <td>CAUSE NO. 86 OF 2008</td> </tr> <tr> <td>IN THE MATTER of Section 46 of the Companies Law (2007 Revision)</td> </tr> <tr> <td>AND IN THE MATTER of the Grand Court Rules 1995， Order 102(2) (1) (b)</td> </tr> <tr> <td>BETWEEN：</td> </tr> <tr> <td>(1) BANDONE Sdn Bhd</td> <td>Plaintiffs</td> </tr> <tr> <td>(2) THE BRUNEI INVESTMENT AGENCY</td> </tr> <tr> <td>DUD</td> <td>Defendants</td> </tr> <tr> <td>(1) SOL PROPERTIES INC.</td> </tr> <tr> <td>LI YANG TERAMAT MULIA PADUKA SERI PENGIRAN</td> </tr> <tr> <td>IG SAHIBUL MAL PENGIRAN MUDA HAJI JEFRI BOLKIAH</td> </tr> <tr> <td>GA</td> </tr> <tr> <td>Appears：</td> </tr> <tr> <td>Mr. Martin Pascoe， Q.C. instructed by Mr. Christopher</td> </tr> <tr> <td>Russell and Mr. William Jones of Ogier for the Plaintiffs</td> </tr> <tr> <td>Mr. Jeremy Walton of Appleby for the Defendants</td> </tr> <tr> <td>Before：</td> </tr> <tr> <td>Hon. Justice Henderson</td> </tr> <tr> <td>Heard：adonation</td> <td>May 13& 14， 2008</td> </tr> <tr> <td>Emoney and</td> </tr> <tr> <td>“So</td> </tr> <tr> <td>JUDGMENT</td> </tr> <tr> <td>This app</td> </tr> <tr> <td>rectification of the register of members of the first defendant Sol</td> </tr> <tr> <td>Properties Inc. ("Sol") by the Brunei Investment Agency ("BIA") and its wholly owned</td> </tr> <tr> <td>subsidiary Bandone Sdn Bhd ("Bandone")， raises issues concerning the enforcement of</td> </tr> <tr> <td>foreign judgments. The second defendant， referred to in these proceedings as</td> </tr> <tr> <td>DI</td> </tr> <tr> <td>an</td> </tr> <tr> <td>the Brunei Investment Agency v. Sol Properties Inc. et al Cause No. 86 of 2008 05.06.08</td> </tr> <tr> <td>Page 1 of 22</td> </tr> </table> ```
```html <table> <tr> <td>“Prince Jefri”，is the youngest brother of His Majesty the Sultan of Brunei Darussalam.</td> </tr> <tr> <td>Two of Prince Jefri's sons are directors of Sol，a Cayman Islands exempt company.</td> </tr> <tr> <td>Facts</td> </tr> <tr> <td>In February， 2000 proceedings were instituted in the High Court of Brunei Darussalamagainst Prince Jefri and others by the Government of His Majesty the Sultan claiming therestoration of in excess of US$15 billion on the ground that it had been misappropriatedby Prinmentually， a time when he was Minister of Finance of Brunei and chairman of theBIA. Thing Jefri the litigation was compromised by a settlement agreement which，among Band， required Prince Jefri to transfer his shares in Sol to the BIA or itsnomineeh approper. Sol owns， indirectly， the Hotel Bel-Air in Los Angeles， an asset saidto be w， he has rimately US$100， 000， 000.</td> </tr> <tr> <td>， w Prince Jefri of Brufri did perform some of his obligations under the settlementagreement， but however transferred the Sol shares. By October， 2004 Prince Jefri wasclaimmateri：as no longer bound by its terms. The BIA brought an application in theHigh Cation， w nei Darussalam to enforce the terms of the agreement against PrinceJefri.</td> </tr> <tr> <td>This application which was resisted， resulted in an order in favour of the BIA. Theorder， in general parts， reads as follows：</td> </tr> <tr> <td>， evetio THE HIGH COURT OF BRUNEI DRUSSALAMLDEN AT BANDAR SERI BEGAWAN</td> </tr> <tr> <td>Judgment -ownend the Brunel Investment Agency v. Sol Properties Inc. et al Cause No. 86 of 2008 05.06.08</td> </tr> <tr> <td>Page 2 of 22</td> </tr> <tr> <td>plight</td> </tr> <tr> <td>Bai</td> </tr> </table> ```
```html <table> <tr> <td>SUIT NO 31 OF 2000</td> </tr> <tr> <td>CHIEF JUSTICE DATO SERI PADUKA MOHAMMED SIED</td> </tr> <tr> <td>SATURDAY 25 MARCH 2006</td> </tr> <tr> <td>BETWEEN</td> </tr> <tr> <td>(1) THE STATE OF BRUNEI DARUSSALAM</td> <td>Plaintiffs</td> </tr> <tr> <td>(2) BRUNEI INVESTMENT AGENCY</td> </tr> <tr> <td>-and-</td> </tr> <tr> <td>HRH PRINCE JEFRI BOLKIAH</td> <td>Defendants</td> </tr> <tr> <td>AND OTHERS</td> </tr> <tr> <td>ORDER FOR THE TRANSFER OF ASSETS BY</td> </tr> <tr> <td>o 381</td> <td>THE FIRST DEFENDANT TO THE SECOND</td> </tr> <tr> <td>PLAINTIFF</td> </tr> <tr> <td>THE APP</td> </tr> <tr> <td>IS BEING N</td> </tr> <tr> <td>UPON specific LICATION of the Second Plaintiff (the BIA) by summons in</td> </tr> <tr> <td>Chambe</td> <td>of 2004 issued on 11 October 2004</td> </tr> <tr> <td>AND I</td> <td>AGG DECLARED by this Court that the BIA is entitled to have the First</td> </tr> <tr> <td>Defend</td> <td>Defendant perform each of the First Defendant's obligations under the</td> </tr> <tr> <td>Settle</td> <td>Settlement Agreement dated 12 May 2000 (the Settlement Agreement)</td> </tr> <tr> <td>IT IS C</td> <td>THAT：</td> </tr> <tr> <td>(c)</td> </tr> <tr> <td>1.</td> <td>st Defendant do within 45 days of the First and Second Undertakings</td> </tr> <tr> <td>in B</td> <td>to have effect transfer to the BIA or as the BIA may in writing direct</td> </tr> <tr> <td>owing assets：</td> </tr> <tr> <td>ndone So</td> <td>shares of or any interest in or rights over Sol Properties Inc"</td> </tr> <tr> <td>pers</td> </tr> <tr> <td>Judgment-</td> <td>T</td> </tr> <tr> <td>id the Brunei Investment Agency v. Sol Properties Inc. et al Cause No. 86 of 2008 05.06.08</td> </tr> <tr> <td>ORlan</td> <td>Page 3 of 22</td> </tr> <tr> <td>ten</td> </tr> <tr> <td>Bai</td> </tr> </table> ```
Prince Jefri appealed to the Court of Appeal of Brunei Darussalam against this order. His appeal was dismissed. Prince Jefri asked the Privy Council for special leave to appeal. Meanwhile, since no stay of execution had been granted, the BIA sought and obtained an order of the High Court of Brunei Darussalam appointing the Registrar of that Court to execute the documentation required to effect the transfer of the shares of Sol to Bandone. This order in its material parts reads: \begin{tabular}{|c|c|} \hline \textbf{IBDEN AT} & \textbf{BE} \\ \textbf{IN No 31 of COURT OF BRUNEI DARUSSALAM} & \textbf{HIS} \\ \textbf{HO BANDAR SERI BEGAWAN} & \textbf{ROYAL HIGHNESS PRINCE JEFRI BOLKIAH} \\ \textbf{SUUSTIGE HIC2000} & \textbf{D OTHERS} \\ \textbf{PTEV CE DATO SERI PADUKA MOHAMMED SAIED} & \\ \textbf{CH (1) 19 F JEN ER 2006} & \\ \hline \end{tabular} \begin{tabular}{|c|c|} \hline \textbf{Plaintiffs} & \textbf{Defendants} \\ \textbf{THE STATE OF BRUNEI DARUSSALAM} & \\ \textbf{AN BRUNEI INVESTMENT AGENCY} & \\ \hline \end{tabular} ORDER PURSUANT TO ORDER 45 RULE 8 OF THE RULES OF THE SUPREME COURT THAT ACTS REQUIRED TO BE DONE BY THE FIRST DEFENDANT BE DONE BY THE REGISTRAR OF THE HIGH COURT OF BRUNEI DARUSSALAM. IT TWEETH the Brunei Investment Agency v. Sol Properties Inc. et al Cause No. 86 of 2008 05.06.08 Page 4 of 22
```html <table> <tr> <td>UPON THE APPLICATION of the Second Plaintiff (the BIA) by Summons inChambers No 299 for 2006 issued by the BIA on 11 July 2006 (the Summons)</td> </tr> <tr> <td>AND UPON Counsel for the BIA undertaking on behalf of each of the BIA andBandone Sdn Bhd that it will not dispose of any of the assets that are the subject ofthis Order until final determination of Prince Jefri's application for special leave toappeal to the United Kingdom Privy Council against the orders of the Court ofAppeal made on 20 May 2006， which application is due to be heard on30 November 2006</td> </tr> <tr> <td>IT ORDERED AND DIRECTED THAT pursuant to Order 45 Rule 8 of theRule Regist Supreme Court：-Instruct as</td> </tr> <tr> <td>1.of thrar of the High Court of Brunei Darussalam be appointed to and do</td> </tr> <tr> <td>int</td> </tr> <tr> <td>Bh)I</td> </tr> <tr> <td>all</td> </tr> <tr> <td>135 truments (in the forms attached to this Order at Schedule 3) transferring</td> </tr> <tr> <td>ember 19，the shares of Sol Properties Inc， Clifton House， 75 Port Street， PO Box</td> </tr> <tr> <td>0 GT， George Town， Cayman Islands and any and all of Prince Jefri's</td> </tr> <tr> <td>um</td> </tr> <tr> <td>rests in or rights over the shares of Sol Properties Inc to Bandone Sdn</td> </tr> <tr> <td>1</td> </tr> <tr> <td>name of</td> </tr> <tr> <td>On Seps of Sd doc 2006 the Registrar executed on behalf of Prince Jefri a deed of transfer</td> </tr> <tr> <td>and rel. On entation in respect of the Sol shares. BIA's solicitors have asked Sol to</td> </tr> <tr> <td>record number 8， 2 orf Bandone in its Register of Members in place of that of Prince Jefri.</td> </tr> <tr> <td>The dir real have refused.</td> </tr> <tr> <td>in brn</td> </tr> <tr> <td>rin ce Jef</td> </tr> <tr> <td>On Nov 007 the Privy Council handed down two judgments dismissing Prince</td> </tr> <tr> <td>Jefri's a e dealt with what has been described as "the procedural issue" and</td> </tr> <tr> <td>rejected (3 ex IS ri's claim that he could not obtain a fair hearing in Brunei Darussalam.</td> </tr> <tr> <td>Judgment app the terd the Brunei Investment Agency v. Sol Properties Inc. et al Cause No. 86 of 2008 05 06 08</td> </tr> <tr> <td>Page 5 of 22</td> </tr> </table> ```
The document appears to be a legal judgment or court document. Below is a faithful transcription of the visible text, formatted according to the instructions provided: --- The other, which dealt with the "substantive issue", confirmed that the lower courts were correct in deciding that the BIA was entitled to an order upon summary application requiring specific performance of the settlement agreement by Prince Jefri. Sol has continued to refuse to amend its Register of Members. Issues This argument or rectification of the register of Sol is resisted on these grounds. **Pondicatio** First, the Rent say that the second order of the High Court of Brunei Darussalam (direct lex sita, registrar to execute documents) is an order in rem relating to property of which islands belong to the Cayman Islands and is therefore an order of which this court should not enforce. The respondents also say that the earlier order of the High Court for Spetibol and Prance is an order in personam and cannot be enforced directly in the Cayman Islands because it is not a judgment for a debt or for a definite sum of money. Second, Prince Jefri says that should this court "decide to amend the common law rule which prohibits the enforcement of a foreign non-money judgment", the court retains a discretion and should exercise that discretion in their favour. --- This transcription is based on the visible text in the image and does not include any invented content.
Third, the respondents emphasize that their case is complex and cannot be dealt with appropriately on a summary basis. They say the plaintiffs should have commenced a Writ action. ## First Issue: Jurisdiction to Enforce the Order The distinction between judgments in rem and in personam in connection with company shares C. is been the subject of a recent judgment of the Privy Council in *Pattni v. Ali et al* [2006] or Division 51. The appeal arose from a petition brought by Mr. Pattni in the Chance, an IsK. P.Q of the Isle of Man seeking rectification of the Register of Members of World Dr. PaKenya of Man company. Mr. Pattni had obtained a judgment of the High Court indant to ity-dering Mssrs. Ali and Dinky to “transfer all the 100% shares in the third dan argunt M the plaintiff as per the said sale and purchase agreement.” The court found rer the shartni had paid for certain shares but that Mssrs. Ali and Dinky had failed to tranthe Collins, res to him in breach of their agreement. Both of the lower courts had accept “Rent orient that this was a judgment in rem and therefore incapable of jud enforce (2) cognition in the Isle of Man. The rule relied upon is set out in *Dicey, Morris* sit The Conflict of Laws, 14th Edition (2006) in these terms: rule 40 – (1) A court of a foreign country has jurisdiction to give a judgment in rem capable of enforcement or recognition in England if sit subject matter of the proceedings wherein that judgment was given is movable or movable property which was at the time of the proceedings date in that country. A court of a foreign country has no jurisdiction to adjudicate upon the title to, or the right to possession of, any immovable thaof bry ha hate outside that country.” Judgment: &ed Shd the Brunei Investment Agency v. Sol Properties Inc. et al Cause No. 86 of 2008 05.06.08 em -Bi Page 7 of 22
Their Lordships quoted from the judgment of Blackburn, J. in Castrique v. Imrie (1870) LR 4 HL 414 which described a decision in rem as one by a tribunal with “jurisdiction to determine not merely on the rights of the parties, but also on the disposition of the thing.” Their Lordships commented (at page 97): “21 For present purposes, a judgment in rem in the sense of rule 40 is thus a judgment by a court where the relevant property is situate, adjudicating on its title or disposition as against the whole world (and not merely as between parties or their privies in the litigation before it).” The court with an order or judgment made in personam was described in these words (at paragraph 25): “25 However, an order purporting actually to transfer or dispose of property is, however, to be distinguished from a judgment determining the contractual rights of parties to property. Courts frequently adjudicate on the rights to property and otherwise of parties before them arising from contractual or quasi-contractual actions relating to movables or intangibles situate in other states; in doing so, common law courts apply the governing law of the relevant contract and the lex situs of the relevant movable or intangible to the effect of the transaction as appropriate in accordance with principles discussed in the text to rules 120 and 124 in re Staley v. Morris & Collins.” In the Irish team for the Council found that the Kenyan order was a “classic order in personam” or a specific performance in terms reflecting and predicated the Judge’s finding to plaintiff’s claim for sale and of its breach by Messrs. Ali and Dinky which are finding in favor of Mr. Patini’s claim in the Isle of Man to rectify [the register]” (at page 101). The Kenyan Court did not purport to pass legal title to the shares from defendant, that could only take place in the Isle of Man upon alteration of the register. Beneficial ownership of the shares, on the other hand, was not transferred.
```html <table> <tr> <td>transferred to Mr. Pattni under the share transfer agreement well before the Kenyan Court</td> </tr> <tr> <td>took cognizance of the claim.</td> </tr> <tr> <td>Similarly, I conclude without difficulty that the first order of the High Court of Brunei</td> </tr> <tr> <td>Darussalam, for specific performance, was a judgment in personam. The judgment is</td> </tr> <tr> <td>final and conclusive and was pronounced by a court with jurisdiction to give it. The</td> </tr> <tr> <td>judgment imposed an obligation of a personal nature upon Prince Jefri - the obligation to</td> </tr> <tr> <td>take the necessary steps to transfer the shares to Bandone. He did not do so.</td> </tr> <tr> <td>th</td> </tr> <tr> <td>The Reahe was sue High Court was then appointed to act in Prince Jefri's stead. In</td> </tr> <tr> <td>doing shave, itar oimply carrying into effect obligations of a personal nature which Prince</td> </tr> <tr> <td>Jefri sh.</td> </tr> <tr> <td>o the but did not, carry out. The order appointing the Registrar was entirely</td> </tr> <tr> <td>ancill assume id Hier order and made only for the purpose of perfecting it. The later</td> </tr> <tr> <td>order case of remo greater significance than the earlier one. It, also, is an order made</td> </tr> <tr> <td>in personE</td> </tr> <tr> <td>or</td> </tr> <tr> <td>he</td> </tr> <tr> <td>whi</td> </tr> <tr> <td>In the c Form, thaching their decision in Pattni v. Ali that the Kenyan order was made</td> </tr> <tr> <td>per</td> </tr> <tr> <td>triv Council said this:</td> </tr> <tr> <td>ter</td> </tr> <tr> <td>Their Lordships are not however concerned with immovables，</td> </tr> <tr> <td>which represent as stated an exceptional case in private international law.</td> </tr> <tr> <td>W</td> </tr> <tr> <td>present purposes， it is the converse of the above propositions relating</td> </tr> <tr> <td>(whovables or intangibles that is important. As presently advised， though</td> </tr> <tr> <td>R. arguments did not address the point (or it may be need to under the</td> </tr> <tr> <td>ns of the two preliminary issues presently in issue) ， their Lordships</td> </tr> <tr> <td>maone sold think it clear that， where a court in state A makes， as against</td> </tr> <tr> <td>sons who have submitted to its jurisdiction， an in personam judgment</td> </tr> <tr> <td>arding contractual rights to either movables or intangible property</td> </tr> <tr> <td>ether in the form of a simple chose in action or shares) situate in state</td> </tr> <tr> <td>only to， the courts of state B can and should recognise the foreign court's in</td> </tr> <tr> <td>an iougisld the Brunei Investment Agency v. Sol Properties Inc. et al Cause No. 86 of 2008 05.06.08</td> </tr> <tr> <td>Judgment</td> </tr> <tr> <td>ou</td> </tr> <tr> <td>one</td> </tr> </table> ```
```html <table> <tr> <td>personam determination of such rights as binding and should itself be</td> </tr> <tr> <td>prepared to give such relief as may be appropriate to enforce such rights in</td> </tr> <tr> <td>state B. The extent to which this is possible might be limited by the law of</td> </tr> <tr> <td>of the relevant company (in this case, as both). For example, if a person to</td> </tr> <tr> <td>whom a court in state A held that shares had been contractually agreed to</td> </tr> <tr> <td>be transferred was not eligible under the company's constitution to be</td> </tr> <tr> <td>registered as their legal owner, there could be no actual registration in</td> </tr> <tr> <td>state B - but no such suggestion appears in this case.</td> </tr> <tr> <td>28 Their Lordships turn to the relevance and application of these</td> </tr> <tr> <td>principles to the present circumstances. Whatever else might be in doubt</td> </tr> <tr> <td>about the course of the Kenyan proceedings, it is clear that they involved</td> </tr> <tr> <td>contractual issues between parties to the proceedings who are also the</td> </tr> <tr> <td>parties to the Isle of Man proceedings - Mr. Patti on the one side and Mr.</td> </tr> <tr> <td>Ali and Dinky on the other.” (underlining added)</td> </tr> <tr> <td>There nent c</td> </tr> <tr> <td>ut not always sufficiently recognized, distinction between recognition</td> </tr> <tr> <td>and en "(2n of a foreign court order or judgment. The general rule concerning</td> </tr> <tr> <td>recogn) cern personam judgment is given in Dicey, Morris & Collins as</td> </tr> <tr> <td>rule 35</td> </tr> <tr> <td>me</td> </tr> <tr> <td>reli</td> </tr> <tr> <td>wit) A foreign judgment given by the court of a foreign</td> </tr> <tr> <td>un country with jurisdiction to give that judgment in accordance</td> </tr> <tr> <td>to enforce the principles set out in Rules 36 to 39, which is not impeachable</td> </tr> <tr> <td>ler any of Rules 42 to 45 and which is final and conclusive on the</td> </tr> <tr> <td>rits, 67 is entitled to recognition at common law and may be</td> </tr> <tr> <td>ed on in proceedings in England. 68</td> </tr> <tr> <td>The rig</td> </tr> <tr> <td>RUulee directly a foreign judgment in personam is described in Dicey and</td> </tr> <tr> <td>to j</td> </tr> <tr> <td>Morris</td> </tr> <tr> <td>an L</td> </tr> <tr> <td>wh</td> </tr> <tr> <td>“A. Enforcement and Recognition</td> </tr> <tr> <td>by</td> </tr> <tr> <td>14R-0</td> </tr> <tr> <td>ILE 35-(1) Subject to the exceptions hereinafter mentioned and</td> </tr> <tr> <td>made Rule 55 (international conventions)， a foreign judgment 6a in personam</td> </tr> <tr> <td>en by the court of a foreign country with jurisdiction to give that</td> </tr> <tr> <td>gment in accordance with the principles set out in rules 36 to 39， and</td> </tr> <tr> <td>itids a</td> </tr> <tr> <td>ich is not impeachable under any of Rules 42 to 45， may be enforced</td> </tr> <tr> <td>(2) for</td> </tr> <tr> <td>Judgment</td> </tr> <tr> <td>jht</td> </tr> <tr> <td>18， R</td> </tr> <tr> <td>-B</td> </tr> <tr> <td>Page 10 of 22</td> </tr> </table> ```
```html <table> <tr> <td>(a)</td> <td>for a debt， or definite sum of money 62 (not being a sum</td> </tr> <tr> <td>payable in respect of taxes or other charges of a like</td> </tr> <tr> <td>nature 63 or in respect of a fine or other penalty 64)； and</td> </tr> <tr> <td>(b) final and conclusive， 65</td> </tr> <tr> <td>but not otherwise."</td> </tr> </table> The underlined words in the quotation from Pattni set out above appear to alter the traditional rule that a foreign judgement in personam can be enforced directly in England (and， by extension， in the Cayman Islands) only if it is for a debt or definite sum of money. The judgment of a foreign court to the effect that a plaintiff is entitled to specific performance of an agreement for the purchase and sale of shares would not fall within Rule 3d of the L The B rationing at the passage in Pattni at paragraph 27 (quoted above) was a step in the rea zation oargted by the Privy Council in its resolution of the first issue before it (the character of the Kenyan judgment as in rem or in personam) and must be regarded as part sel， and c. Prince Jefri says that the passage was unnecessary to the decision， is mere o (this cou contains opinion on matters which were not argued. This q f has been considered and resolved in a recent decision of the Chief Justice Trt in Miller v. Gianne and Redwood Hotel Investment Corporation 2007 CILR 1 rief Justice said (at paragraph 62)： "The Privy Council， in allowing Mr. Patti's appeal， declared that the courts of the Isle of Man had jurisdiction and the right to recognise and enforce the Kenyan judgment by way of in personam orders directing Mr. Ali (as a shareholder of World Duty Free and director of Dinky S.A. and Dinky S.A. itself as the majority shareholder) to grant specific performance， among other things， by the rectification of the share register of World Duty Free. bitteriA 5(1) Judgment of Hd the Brunei Investment Agency v. Sol Properties Inc. et al Cause No. 86 of 2008 05 06 08 Page 11 of 22 [8. les - Ba ```
```html <table> <tr> <td>64.</td> <td>While the prelatory words of Lord Mance above suggest that that</td> </tr> <tr> <td>pronouncement of principle was not the subject of arguments</td> </tr> <tr> <td>directly on point， the principle cannot be regarded as mere obiter</td> </tr> <tr> <td>dictum； it was central to the decision taken by which the appeal</td> </tr> <tr> <td>was allowed and the Kenyan judgment declared to be enforceable.</td> </tr> <tr> <td>The fact therefore that the longstanding rule derived from Sadler v</td> </tr> <tr> <td>Robins (29) (itself described by Dicey， Morris and Collins， op cit，</td> </tr> <tr> <td>vol. 1， at 574， note 62， as a limitation worthy of being</td> </tr> <tr> <td>reconsidered) appears not to have been the subject of arguments</td> </tr> <tr> <td>before their Lordships， is no basis for doubting that it has been</td> </tr> <tr> <td>disapproved.</td> </tr> <tr> <td>65.</td> <td>Further， clear indication by way of high judicial authority that</td> </tr> <tr> <td>Sadler v Robins should no longer represent the law on enforcement</td> </tr> <tr> <td>of foreign judgments in personam at common law， is to be found</td> </tr> <tr> <td>in the judgment of the Supreme Court of Canada in Pro Swing Inc.</td> </tr> <tr> <td>v Elta Golf Inc (27)。 There the majority of the Court held (in the</td> </tr> <tr> <td>context of an application to enforce a trademark judgment) that the</td> </tr> <tr> <td>traditional common law rule that limits the recognition and</td> </tr> <tr> <td>enforcement of foreign orders to final money judgments should be</td> </tr> <tr> <td>changed。 Further， that the appropriate modern conditions for</td> </tr> <tr> <td>recognition and enforcement can be expressed generally as</td> </tr> <tr> <td>follows。 The judgment must have been rendered by a court of</td> </tr> <tr> <td>competent jurisdiction and must be final and conclusive， and it</td> </tr> <tr> <td>must be of a nature that the principles of comity require the</td> </tr> <tr> <td>domestic court to enforce。 Comity does not require receiving</td> </tr> <tr> <td>courts to extend greater judicial assistance to foreign litigants than</td> </tr> <tr> <td>it does to its own litigants， and the discretion that underlies</td> </tr> <tr> <td>equitable orders can be exercised by Canadian courts when</td> </tr> <tr> <td>deciding whether to enforce one。</td> </tr> <tr> <td>66.</td> <td>This invocation by the Canadian Supreme Court of equitable</td> </tr> <tr> <td>principles is derived from an examination of the history of the</td> </tr> <tr> <td>traditional common law limitations set now against the realities of</td> </tr> <tr> <td>modern day commerce and the global mobility of people and</td> </tr> <tr> <td>assets。 Those are realities which exist， no less so， for our</td> </tr> <tr> <td>jurisdiction.</td> </tr> <tr> <td>67</td> <td>Moreover， the jurisdiction in the courts to provide relief by way of</td> </tr> <tr> <td>recognition and enforcement of foreign non-monetary judgments</td> </tr> <tr> <td>may well have existed in equity even before the emergence of the</td> </tr> <tr> <td>rule in Sadler v Robins (29) in 1808。 See， for instance Morgan's</td> </tr> <tr> <td>Case (21)。 The inclination in the modern jurisprudence now to</td> </tr> </table> ```
```html <table> <tr> <td>grant recognition and enforcement by way of equitable remedies</td> </tr> <tr> <td>such as specific performance， injunctive or declaratory relief and</td> </tr> <tr> <td>pleas of res judicata， may well be regarded as a re-emergence of</td> </tr> <tr> <td>that jurisdiction which has always existed in equity， even if</td> </tr> <tr> <td>rendered dormant over the years in deference to the limitations of</td> </tr> <tr> <td>the traditional common law rule. For an elucidatory discussion on</td> </tr> <tr> <td>the subject see White， Enforcement of Foreign Judgments in</td> </tr> <tr> <td>Equity， (1980-82) 9 Sydney Law Review at 630-648.</td> </tr> <tr> <td>68.The consequence of all this is， in my view， the appropriate</td> </tr> <tr> <td>conclusion that Ms. Miller should be allowed to seek the</td> </tr> <tr> <td>recognition and enforcement of the stipulated judgment itself in</td> </tr> <tr> <td>this jurisdiction， notwithstanding that it is not a judgment for a</td> </tr> <tr> <td>debt by way of a definite sum of money.</td> </tr> <tr> <td>The asp ecent， considered judgment in a case whose facts are not as close to those in</td> </tr> <tr> <td>Pa</td> </tr> <tr> <td>ly foreign the present case is conclusive of the point. The ability to enforce</td> </tr> <tr> <td>dir Island v Alin judgments and orders made in personam is no longer confined in the</td> </tr> <tr> <td>Can ent 1</td> </tr> <tr> <td>Is to judgments for a debt or a definite sum of money.</td> </tr> <tr> <td>urse， enfan</td> </tr> <tr> <td>Ofct to whod enforcement of a foreign in personam non-money judgment requires that</td> </tr> <tr> <td>the y require final and conclusive and of such a nature that the principles of</td> </tr> <tr> <td>cone(d) Issue： this court to enforce it： Miller v. Gianne et al， supra， paragraph 65.</td> </tr> <tr> <td>Sul</td> </tr> <tr> <td>at I will say below on aspects of comity， those criteria are met here.</td> </tr> <tr> <td>ing， der. th</td> </tr> <tr> <td>Secwing Inc. . Discretion to Refuse to Enforce</td> </tr> <tr> <td>mbes stagell</td> </tr> <tr> <td>In n non-Chief Justice followed the judgment of the Supreme Court of Canada in</td> </tr> <tr> <td>Pre</td> </tr> <tr> <td>na me so. v. Elta Golf Inc. 2006 SCC 52. The majority in Pro Swing found a</td> </tr> <tr> <td>“co</td> </tr> <tr> <td>ase for altering the common law to permit the direct enforcement of</td> </tr> <tr> <td>for ju</td> </tr> <tr> <td>ect is money judgments but warned that this change must be accompanied by a</td> </tr> <tr> <td>Judgment nit coy mtn， had the Brunei Investment Agency. Sol Properties Inc. et al Cause No. 86 of 2008 05-06-08</td> </tr> <tr> <td>mmMiconpie</td> </tr> <tr> <td>Page 13 of 22</td> </tr> </table> ```
```html <table> <tr> <td>judicial discretion to ensure that enforcement does not "disturb the structure and</td> </tr> <tr> <td>integrity of the domestic legal system" (per Deschamps， J. at paragraph 15). There is</td> </tr> <tr> <td>a need for balance and restraint and a careful and nuanced approach. The majority</td> </tr> <tr> <td>said (at paragraph 31)：</td> </tr> <tr> <td>“For present purposes， it is sufficient to underscore the need to</td> </tr> <tr> <td>incorporate the very flexibility that infuses equity. However， the</td> </tr> <tr> <td>conditions for recognition and enforcement can be expressed</td> </tr> <tr> <td>generally as follows： the judgment must have been rendered by</td> </tr> <tr> <td>a court of competent jurisdiction and must be final， and it must be</td> </tr> <tr> <td>of a nature that the principle of comity requires the domestic court to</td> </tr> <tr> <td>enforce. Comity does not require receiving courts to extend greater</td> </tr> <tr> <td>judicial assistance to foreign litigants than it does to its own litigants，</td> </tr> <tr> <td>the discretion that underlies equitable orders can be exercised by</td> </tr> <tr> <td>Indian courts when deciding whether or not to enforce one."</td> </tr> <tr> <td>(</td> </tr> <tr> <td>The</td> </tr> <tr> <td>judgment added that "general fairness considerations" are relevant and</td> </tr> <tr> <td>emnity. I aint the foreign judgment must be final， clear in its terms and free of</td> </tr> <tr> <td>amal proce cept these comments on discretion as applicable in the present case.</td> </tr> <tr> <td>Sun 84B(2)</td> </tr> <tr> <td>Secunofficial 2) of the Brunei Constitution grants an immunity from civil and</td> </tr> <tr> <td>crind is tly theedings to any person "acting on behalf， or under the authority， of" His</td> </tr> <tr> <td>Mat. of Brutan "in respect of anything done or admitted to have been done by him</td> </tr> <tr> <td>in ht becau arapacity...". Prince Jefri says that the BIA is acting on behalf of the</td> </tr> <tr> <td>Sul neherefore immune from any order for specific performance the High</td> </tr> <tr> <td>Cori Darussalam might otherwise decide to pronounce against it. This is</td> </tr> <tr> <td>rele se the BIA still has undischarged obligations under the settlement</td> </tr> <tr> <td>ndone So</td> </tr> <tr> <td>agr</td> </tr> <tr> <td>phc</td> </tr> <tr> <td>tiobige rr</td> </tr> <tr> <td>Judgment</td> </tr> <tr> <td>eeurt his nirk the Brunet Investment Agency v. Sol Properties Inc. et al Cause No. 86 of 2008 05.06.08</td> </tr> <tr> <td>Page 14 of 22</td> </tr> <tr> <td>yatarjes</td> </tr> <tr> <td>-Ba</td> </tr> </table> ```
When Prince Jefri transferred assets to the BIA and Bandone as required by the settlement agreement, he transferred two residences named Assana and Arrifa which he had been using as his official and private residences respectively. There is reason to believe that this was a simple mistake capable of rectification in Brunei: see His Royal Highness Prince Jefri Bolkiah et al v. the State of Brunei Darussalam and BIA [2007] U.K. PC 63 at paragraph 29 ff (the judgment of the Privy Council on the “substantive issue”). Much was made in argument before me of the possible inability of the High Court of Brunei Darussalam to compel the BIA to transfer these, or any other properties back to Prince Jefri in accordance with its assumed contractual obligations. The specific he Brunei court which the plaintiffs seek to enforce in this jurisdiction are: Flightsee performance. Where there is a lack of mutuality in the sense that the party obligated to perform a contractual obligation cannot itself be ordered to perform its obligations under the contract, specific performance will ordinarily be refused for 3 (Ct v. Bollard (1828) 4 Russ. 296 and Lumley v. Ravenscroft [1895] 1 QB the Birgumeil did not say. Mr. of the plaintiffs says that the Court of Appeal of Brunei entertained this matter regarding immunity and lack of mutuality and rejected it. (The Privy Council rule on the immunity question as it is precluded from doing so by the Brunei (Appeals) Order No. 2396, the statutory instrument giving the Privy Council jurisdiction to consider appeals from Brunei.) Therefore, the Brunei Investment Agency v. Sol Properties Inc. et al Cause No. 86 of 2008 05.06.08 Judgment is that the plaintiffs' claim is not a valid one.
The unanimous judgment of the Court of Appeal contains this passage (at page 26): --- "Submitting that His Majesty, the government and the BIA are all one and the same Mr. Lewis says that the BIA's obligations under the agreement cannot be enforced and that the absence of mutuality and provisions of the Act to the same effect prevent the court ordering specific performance in its favour. It would be manifestly unjust. In answer, Mr. Pascoe for the BIA, contends that his client is a statutory corporation and amenable to suit. Therefore the principle of mutuality and similar provisions in the Act do not bite. He further submits that the absence of mutuality is in any event not an absolute bar but only a circumstance to be taken into account in the exercise of the court's discretion. The Court accepts Mr. Pascoe's submission that the BIA is amenable to suit. The Brunei Investment Agency Act Cap 13 draws a clear distinction between the BIA and the Government. Note for example section 1 which provides that the agency shall act as financial agent of the Government and section 26 which provides that the Government shall be responsible for the payment of all monies due by the agency to a person who has a claim against the agency to sue the Government in respect of that claim. In fact, the transitional provision draws the same distinction by serving any legal proceedings by or against the Government simply the commencement of the Act to be continued by or against the Agency. Walton points out, that the express finding of the Court of Appeal is that the BIA is amenable to suit. This terse observation considered in isolation suggests that the BIA is amenable to suit on certain occasions – those acting for or behalf of the Sultan – but not in circumstances of the sort an enforcement of the settlement agreement. In the context, however, Judgment – at: UI and the Brunei Investment Agency v. Soi Properties Inc. et al Cause No. 86 of 2008 05.06.08 are applicable." --- Page 16 of 22
```html <table> <tr> <td>his submission is bound to fail. The Court of Appeal was considering the BIA's</td> </tr> <tr> <td>possible immunity from suit specifically in connection with obligations imposed upon</td> </tr> <tr> <td>it by the settlement agreement. The court had no reason to consider the BIA's</td> </tr> <tr> <td>liability to suit in any other context. Immediately after its finding (on page 27)， the</td> </tr> <tr> <td>Court of Appeal provides two examples in the BIA's founding legislation which</td> </tr> <tr> <td>imply that the BIA can be sued when acting as a financial agent of the Government.</td> </tr> <tr> <td>Moreover， the Court of Appeal said (at page 25)， when dealing with the question of</td> </tr> <tr> <td>miso pe， that "if it was a mistake， one would expect separate proceedings would have</td> </tr> <tr> <td>beetled engs agut matters right." This suggestion that Prince Jefri could take separate</td> </tr> <tr> <td>pron that aken tainst the BIA for the rectification of a mutual mistake is another</td> </tr> <tr> <td>induction the set the Court of Appeal of Brunei considers that the BIA's obligations</td> </tr> <tr> <td>unc</td> </tr> <tr> <td>tiement agreement can be enforced by legal action.</td> </tr> <tr> <td>d.</td> </tr> <tr> <td>My e the set is that the BIA is not immune from proceedings taken against it to</td> </tr> <tr> <td>enf</td> </tr> <tr> <td>slr Jem's element agreement and that the Court of Appeal of Brunei has so</td> </tr> <tr> <td>dec</td> </tr> <tr> <td>Adv Jefri</td> </tr> <tr> <td>Prin Jefri Bo fie second point concerning discretion is that he did not receive a fair trial</td> </tr> <tr> <td>in E， and the Piy of his complaints about a lack of trial fairness have already been</td> </tr> <tr> <td>con in Brune lack on decided against him by the Privy Council in His Royal Highness</td> </tr> <tr> <td>Prin Jiah et al v. the State of Brunei Darussalam and BIA [2007] U.K. PC</td> </tr> <tr> <td>62 (done Saounci's decision on the "procedural issue"). Prince Jefri's complaints</td> </tr> <tr> <td>abo coler cestal of availability of judicial review， that the proceedings were heard in</td> </tr> <tr> <td>can orc icant at judgments in the case may not be published， have been dealt with</td> </tr> <tr> <td>Judgment -the insurance ided the Brunei Investment Agency v. Sol Properties Inc. et al Cause No. 86 of 2008 05.06.08</td> </tr> <tr> <td>ut nce Bru</td> </tr> <tr> <td>Page 17 of 22</td> </tr> </table> ```
```html <table> <tr> <td>conclusively by the Privy Council. He is estopped from raising those same issues</td> </tr> <tr> <td>before me.</td> </tr> <tr> <td>The one complaint of Prince Jefri's upon which the Privy Council felt unable to</td> </tr> <tr> <td>comment was the fact that constitutional amendments granting immunity to agents of</td> </tr> <tr> <td>the Sultan were made in Brunei shortly before the BIA issued its summons to enforce</td> </tr> <tr> <td>the judgment in its favour. Prince Jefri says that the only reasonable inference is that</td> </tr> <tr> <td>the amendments were aimed at the present litigation. The BIA disputes this and</td> </tr> <tr> <td>hae nt</td> </tr> <tr> <td>vidence that the amendments had been under consideration for many</td> </tr> <tr> <td>yee</td> </tr> <tr> <td>lduce</td> </tr> <tr> <td>ed by urgum</td> </tr> <tr> <td>Th my deci is disposed of effectively by my conclusion immediately above.</td> </tr> <tr> <td>Givinity) calersion that the Court of Appeal of Brunei has decided that the BIA can</td> </tr> <tr> <td>be 3rutions， nethe High Court there to perform its remaining settlement agreement</td> </tr> <tr> <td>oblis</td> </tr> <tr> <td>ither the timing of the constitutional amendments nor their substance</td> </tr> <tr> <td>(imfri alsal in support an assertion that Prince Jefri has not had and cannot have a</td> </tr> <tr> <td>fair to satwhichnei.</td> </tr> <tr> <td>and its v Je</td> </tr> <tr> <td>Prin</td> </tr> <tr> <td>le o argues that he has at present no security for his counterclaim in New</td> </tr> <tr> <td>Yor</td> </tr> <tr> <td>his cour said to be worth at least $100 million US. He contends that the Sol</td> </tr> <tr> <td>share</td> </tr> <tr> <td>underlying asset， the Hotel Bel-Air， are the only assets of substance</td> </tr> <tr> <td>naone so</td> </tr> <tr> <td>ava</td> </tr> <tr> <td>is fy any judgment he might get and says they should be preserved to</td> </tr> <tr> <td>secords ars： se iterclaim.</td> </tr> <tr> <td>igaven</td> </tr> <tr> <td>；ac</td> </tr> <tr> <td>Judgment</td> </tr> <tr> <td>lark，</td> </tr> <tr> <td>mu the Briquel Investment Agency v Sol Properties Inc. et al Cause No. 86 of 2008 05.06.08</td> </tr> <tr> <td>ireresu c tri</td> </tr> <tr> <td>Page 18 of 22</td> </tr> <tr> <td>bar</td> </tr> </table> ```
Prince Jefri applied recently to the Supreme Court of the State of New York for a temporary restraining order and preliminary injunction restraining Bandone from (among other things) acquiring ownership of the Hotel Bel-Air. The application was refused. In her reasons for judgment dated March 6th, 2008, Her Honour Judge Freedman made the following findings against Prince Jefri:
"Prince Jefri has not shown that he will suffer irreparable harm in the absence of a preliminary injunction" (page 7);
"Prince Jefri has not shown likelihood of success on the merits" (page 7);
"the balance of equities do not weigh in Prince Jefri's favour" (page 8). I find ince Jefri at I should be asked to refuse rectification of the register in order to secure to accept ly in a counterclaim pending in New York where the New York judge has recon and not uded that Prince Jefri has not demonstrated a likelihood of success on the men im for ashown that he will suffer irreparable harm if the shares are transferred. If I verifying a his assertions before me on the need for security, I would be undermeferer sidered judgment of the court to which Prince Jefri has submitted his counterment irctijudication. I cannot view the supposed need for security as a basis for refusing if pn. A final i favour of my exercising my discretion against rectification has done SdS consiste ices to the "authoritarian nature of the Brunei regime." It is said that the Sulent cu upreme and exclusive executive power and that Brunei is ruled under a itsPri clae to the Brunei Investment Agency v. Sol Properties Inc. et al Cause No. 86 of 2008 05.06.08 Judgment – d c Ban an arg reini
```html <table> <tr> <td>state of emergency allowing him to rule by decree. Prince Jefri argues that there is no</td> </tr> <tr> <td>legitimate justification for the state of emergency.</td> </tr> <tr> <td>In reality，this argument is subsumed in the other arguments disposed of above. What is</td> </tr> <tr> <td>important for my consideration is not the nature of the regime generally or the nature and</td> </tr> <tr> <td>extent of the Sultan's power，but the availability of a fair trial for Prince Jefri in Brunei.</td> </tr> <tr> <td>That question has been disposed of by the judgment of the Privy Council and my</td> </tr> <tr> <td>conclusum on the immunity question. Nothing additional to those points has been</td> </tr> <tr> <td>advanced in the Eent and I am left，therefore，with an absence of evidence exposing any</td> </tr> <tr> <td>unfairness in argunei judicial system which has or may prejudice Prince Jefri in</td> </tr> <tr> <td>litigatine dis</td> </tr> <tr> <td>to this settlement agreement.</td> </tr> <tr> <td>the Chierel.</td> </tr> <tr> <td>In Millinciple ct of Justice echoed the conclusion of the Supreme Court of Canada in Pro</td> </tr> <tr> <td>Swing uninciple cretentionary consideration is whether the foreign judgment is "of a nature</td> </tr> <tr> <td>that the Sulf comity requires the domestic court to enforce." Prince Jefri argues</td> </tr> <tr> <td>that theize ohe Bref comity militates against enforcement because of the authoritarian</td> </tr> <tr> <td>nature ot ord，citini regime，and because the plaintiffs are "for all intents and purposes"</td> </tr> <tr> <td>an agerCollins agtan. However，comity has never been a basis upon which English</td> </tr> <tr> <td>courts n enforce foreign judgments：Indyka v. Indyka[1969]1AC33，58，per</td> </tr> <tr> <td>Lord R accept thchisby v. Westenholz(1870)LR6QB155，159；quoted in Dicey，</td> </tr> <tr> <td>Morris at paragraph 14-082. In light of that position，considerations of</td> </tr> <tr> <td>comity do not linearly assume any central importance on this question of discretion，</td> </tr> <tr> <td>although the lession at comity (or a lack thereof) may be relevant.</td> </tr> <tr> <td>；pier，on；ed</td> </tr> <tr> <td>Judgment-wieidt o pr the Brunei Investment Agency v. Sol Properties Inc. et al Cause No. 86 of 2008 05.06.08</td> </tr> <tr> <td>Page 20 of 22</td> </tr> <tr> <td>hI& ecof</td> </tr> <tr> <td>Bar</td> </tr> </table> ```
The Nature of the Bruneian Regime and the Relationship Between the Sultan and the BIA Moreover, the nature of the Bruneian regime and the relationship between the Sultan and the BIA have little to do with comity at all. Comity involves questions of reciprocity, a consideration of which usually requires answering the question: "would we expect this foreign court to enforce a judgment of our own if the situation were to be reversed?" It is true that a foreign judgment may be impeached on the ground that its enforcement or recognition would be contrary to public policy: Rule 44, Dicey, Morris & Collins. However, any facile conclusion that the governmental or judicial structure in a foreign jurisdiction is such that a judgment of its courts must be ignored on the ground of domesticity and on its policy would itself be an egregious violation of the principle of comity. Dicey, nor all it this Collins, quoting Scrutton, LJ in Luther v. Sagor [1921] 3 KB 532, 558 (CA), legislatorray: "it would be a serious breach of international comity to postulate that the domestic policy of a foreign sovereign state was contrary to essential principles of justice upon that policy." (14th edition, at paragraph 1 - 014). There is no merit in the suggestion that the principles of comity militate against enforcement of this foreign order. **Second Error: Substantive Law** The application for rectification of the register is brought under section 46 of the Companies Act 2007 (Revised). That section contemplates a summary procedure. For obvious reasons, it is undesirable that a corporate register, if it needs rectification, be left in a state of disorder. The section does leave it open to the court to direct that an issue be dealt with in the usual manner; I recognize that I have jurisdiction to convert this into a merits judgment.
**Summary Application into what is, in effect, a Writ Action, complete with pleadings, document disclosure, and cross-examination of witnesses. I am satisfied that nothing but delay would result from such a course. Mr. Walton has said all that can be said against the application, and has done so with his usual skill. There is no justification for any additional proceeding.** For these reasons, I order that the Register of Members of Sol be rectified by substituting the name of Bandone for the name of Prince Jefri as the holder of the shares. Dated the 5th day of June, 2008 **H. J. Hendel** Judge of Grand Court **Grand Court - Cayman Islands**