During this past spring and summer, global law firm Ogier hosted its Second Annual Ogier Global Investment Funds Seminar, titled “The Evolution of Offshore Investment Funds,” for over 300 hedge fund professionals in New York, Boston, the Cayman Islands, Chicago and San Francisco. Colin MacKay, one of the presenting partners at the seminar, spoke at length to the Hedge Fund Law Report about the most important issues addressed in the seminar. Last week, we published the first of three parts of the full transcript. In that first installment, MacKay discussed, among other things: drafting of offshore fund documents; net asset value (NAV) adjustments; clawbacks; managed accounts; and payment-in-kind provisions. See “The Evolution of Offshore Investment Funds (Part One of Three): In Interview with the Hedge Fund Law Report, Ogier Partner Colin MacKay Discusses Drafting of Offshore Fund Documents; NAV Adjustments; Clawbacks; Managed Accounts; and Payment-in-Kind Provisions
,” Hedge Fund Law Report, Vol. 2, No. 30 (Jul. 29, 2009). This week’s issue of the Hedge Fund Law Report includes part two of the full transcript, in which MacKay discusses indemnification of fund directors and the evolution of the “gross negligence” standard; the most relevant caselaw developments in offshore financial centers (including cases addressing when a redeeming shareholder becomes a creditor of a fund and cases dealing with attempts by liquidators to adjust NAV); and clawback principles and mechanics (including an extensive discussion of why a Cayman court may not enforce a clawback action by a U.S. bankruptcy trustee in circumstances such as the Madoff fraud).