In Soriano v Forensic News LLC and Ors the English Court of Appeal has recently clarified the approach of the English courts to an application for an anti-suit injunction restraining a US 1782 application. A 1782 application is an application under Section 1782 of Title 28 of the United States Code by a litigant in non-US proceedings seeking to obtain discovery from a person who resides in the US for use in the non-US proceedings.

In a recent development to section 238 litigation in the Cayman Islands, the Grand Court has confirmed that the relevant date for the purposes of valuation of dissenting shareholders’ shares should be the date of the EGM.

In Yao Juan v Kwok Kin Kwok and Crown Treasure Group Limited, the Court of Appeal handed down another seminal decision on costs’ recovery agreeing with the Appellant that costs incurred by lawyers not admitted to practice in the BVI are not recoverable.

In Cayman Islands Section 238 litigation – disputes as to the fair value of shares held by shareholders of a company that has been privatised – dissenting shareholders are turning to foreign courts to obtain parallel discovery in support of their claims. In two recent decisions, dissenters have relied on US Section 1782 discovery and letters of request to the Hong Kong Court to seek additional documents in those proceedings.

Petitions filed under Section 238 of the Cayman Islands Companies Act are ultimately concerned with one thing: the fair value of shares held by shareholders who have dissented from a merger or consolidation and therefore rejected the price offered to them for their shares. The company subject to the merger contends for a lower valuation; the dissenting shareholder contends for a higher valuation; expert valuation evidence is adduced; the Court, with the assistance of the experts, arrives at a fair value figure.

In the recent decision in the matter of Changyou.com Limited, the Grand Court of the Cayman Islands has resolved the question of whether shareholders who dissent from a “short form” merger are entitled to the same fair value appraisal rights under section 238 of the Companies Act as shareholders who dissent from ordinary mergers.

In Delaware, like in the Cayman Islands, shareholders have the right to dissent from a merger and demand “fair value” for their shares as determined by the Court. A string of decisions from the Delaware Courts in the latter part of 2019 suggest a shift away from DCF towards market-based valuation approaches in appraisal proceedings.

The Delaware Supreme Court has delivered the latest of a series of recent appraisal decisions concerning the determination of fair value under 8 Del. C. § 262(a): Brigade Leveraged Capital Structures Fund and Brigade Distressed Value Master Fund Ltd v Stillwater Mining Co.

The Cayman Court has delivered judgment in Trina Solar Limited. This is likely to be the first case under section 238 of the Companies Law in which fair value is determined to be below the merger price. This is a significant win for Trina and will have a big impact on future s238 cases.