Microsoft Corporation v Vadem Ltd

Microsoft Corporation v Vadem Ltd Written judgment containing statements judgment containing analysis learned judge erred in limiting the scope the leave appellant to bring derivative proceedings in the name of and on respondent company (“Microsoft”) was a minority shareholder in the registered company, Vadem BV!. Vadem (“Vadem California”) was a California a subsidiary Vadem BV!. In October 2011, Microsoft instituted proceedings in the Chancery Court of the State of Delaware, seeking to set aside transfer of certain valuable patents which had been previously owned by Vadem California. These proceedings included claims asserted derivatively in the name of Vadem defendants named in the Delaware proceedings filed a motion to dismiss the derivative claims on the ground that Microsoft did not have standing to bring them because applied and obtained the sanction of the BVI court to do so, as was required section means, because such matters that he was required to satisfy have simply been given bring proceedings in the name and on behalf of Vadem BVI as per without this leave being limited to “claims which are vested in BVI” or without having stated that “Microsoft has no authority and cannot authorized prosecute, here or anywhere else, causes of action vested in Vadem California.” No such limitation or pronouncement was merited by the clear terms of section 184C. Laws of the Virgin Islands (as amended by the BVI Business Companies (Amendment) No. 26 of 2005, Laws of the Virgin Islands). Business Companies Act, 20042 :nmin::u,il!lC::: (Amendment) 20053 upheld defendants’ Microsoft lacked standing pursue the not first obtained leave court 184C. The claims were however dismissed without prejudice re-file the claims should it obtain the leave of the BVI court. 2, Microsoft instituted proceedings in the Commercial Division of Caribbean Supreme Court in the Territory of the Virgin Islands against seeking the following relief:

[6]are available to of court Microsoft filed a notice judgment of Bannister J [Ag.] and sought from the Court of Appeal an order that “the permission to Microsoft to bring derivative proceedings on Vadem be extended to include claims involving causes of action vested in Vadem California. Mr. Webster, QC appearing for the respondent on the appeal submitted that it was not open to Microsoft to pursue the appeal because their complaint was really not with the judge’s order (which is appealable) but with the judge’s analysis of reasoning on the facts and law (which is not appealable). Mr. Webster were husband’s petition was accordingly dismissed. In or judge is being paragraph of written judgment, as follows: am therefore satisfied that Microsoft has no authority and cannot be authorized to prosecute, here or anywhere else, causes of action vested Vadem California. On the other hand, it does seem to me, taking into account all the matters referred to in subsections 184C(2) and (3) .. that Microsoft does make out a good case for leave to prosecute any claims which are vested in Vadem BVI and which arise out of the aSSignments of June 2000 and I propose to give it leave to do so. ‘finding or statement’ made by the learned judge in his written judgment preceded and qualified the order made by him that “the Claimant is hereby given 538. in fill’f’,rr\Cf\tt sought the leave of the court – pursuant to section an action name of and on behalf of form attached”. In order to grant the relief sought, be satisfied that Microsoft was a member of Vadem BVI and – in subsection (2) of section 184C it had to take the following account: whether Microsoft was acting in good faith; whether derivative action is in the interests of Vadem BVI taking account of the views of the company’s directors on commercial matters; whether the proceedings are likely to succeed; is a member of a company to bring proceedings not in the of the which is a member but so too in the name on behalf a company of which the first company is a member. So present case, the court cannot do that which Microsoft asked in its appeal, that for the court to give it leave to bring “claims involving causes action vested in Vadem California”; but the court can and should simply give leave to Microsoft to bring proceedings in the name of and on behalf of Vadem BVI as per section 184C( 1 )(a) of the Act – without limiting the leave to “claims which are vested in Vadem BVI” or without pronouncing ‘1hat Microsoft has no authority and cannot be authorized to prosecute, here or anywhere else, on the respondent shall Mario Michel Justice of Appeal