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Legal Developments in the The UK Legal 500 2019

New Managed Account Regime for Jersey Hedge Fund Managers

January 2015 - Finance. Legal Developments by Ogier .

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An exemption which will enable Jersey-regulated fund managers to be appointed in relation to managed accounts has now been introduced.  This will enable hedge fund managers that are already regulated under the Financial Services (Jersey) Law (FS Law) in Jersey to carry out fund services business (FSB) to also service qualifying segregated managed accounts (QSMAs) without the need to seek additional regulation for the conduct of investment business under the FS Law.

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The Security Interests (Jersey) Law 2012: Changes to Jersey's security regime

January 2015 - Finance. Legal Developments by Ogier .

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On 2 January 2014, the Security Interests (Jersey) Law 2012 came into force in respect of Jersey law security over intangible movable property (e.g. shares/securities, bank accounts and custody assets).  The new law replaces the Security Interests (Jersey) Law 1983 (which was in force for the last three decades) and introduces a number of important changes which modernise Jersey's security regime.

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Funds Legal and Regulatory Update

January 2015 - Finance. Legal Developments by Ogier .

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Period covered:  30 September 2014 to 31 December 2014

 

1 Alternative Investment Fund Managers Directive (AIFMD)

1.1 ESMA call for evidence 

A call for evidence was issued in October 2014 by the European Securities and Markets Authority (ESMA) to gather views on the extension of the AIFMD passport to third countries by July 2015 in line with the original text of level 1 of the AIFMD.

The deadline for the submission of responses to the call for evidence was 8 January 2015.  Ogier worked closely with the Jersey Funds Association on preparing a response. It is anticipated that responses will in due course be published on the ESMA website and that ESMA will provide further clarification on the extent and timing of the extension in the coming months.

Disclosure of documents by former trustee

July 2013 - Finance. Legal Developments by Ogier .

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Volaw Trustee Limited v Trustcorp (Jersey) Limited [2013] Royal Court: Unreported judgment, 4 February 2013

Background

The trust (the Trust) was established by deed dated 17 February 1989. The Trust was a standard discretionary trust with three principal beneficiaries. The principal beneficiaries were brothers (the Brothers). Trustcorp had been the trustee of the Trust from settlement, albeit under different names.

Interpretation of Articles of Association

July 2013 - Finance. Legal Developments by Ogier .

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Pirrwitz-v-AI, PI and Vilsmeier: Royal Court, Unreported Judgment: 24 January 2013

Summary

The case involved a claim by a former director of two Jersey companies (each a Company, and together, the Companies) for sums due under service contracts with those Companies. He claimed that under each service contract the sums of 700,000 and 600,000 Euros respectively were payable upon him ceasing to be a director (the "exit payments").

Prest (Appellant) v Petrodel Resources Limited & Others (Respondents) [2013] UKSC 34 On appeal from:

June 2013 - Finance. Legal Developments by Ogier .

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On 12 June 2013, the English Supreme Court handed down a unanimous judgment which discussed the ability of the English Family Division to treat the assets of companies wholly owned by one party to a divorce as available to that party for the purposes of ancillary relief.

High Yield and Convertible/Exchangeable Bonds

June 2013 - Finance. Legal Developments by Ogier .

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M&A bond financing: offshore high yield and convertible bond issuance

Guernsey Investment Funds - AIFMD Update

June 2013 - Finance. Legal Developments by Ogier .

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ESMA approves cooperation arrangements with Guernsey

Jersey Alternative Investment Funds - AIFMD Update

June 2013 - Finance. Legal Developments by Ogier .

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Jersey signs regulatory co-operation agreement

We reported in our December 2012 briefing that, with the release of the AIFMD Level 2 regulations, we were optimistic that eligible Third Countries (such as Jersey) would be able to continue to market their funds to professional investors within the EU after July 2013.

In the Matter of the Representation of A Limited and in the Matter of the F Foundation...

June 2013 - Finance. Legal Developments by Ogier .

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Introduction

This case concerned an application for directions by the qualified member of F Foundation's Council. It is the first case in which the Royal Court has been asked to consider its supervisory powers under the Foundations (Jersey) Law 2009 (the Foundations law). The judgment includes an overview of Jersey foundations and the basic and salient points of the Foundations Law.

Jersey Royal Court considers measure of damages for dilapidations claims

May 2013 - Finance. Legal Developments by Ogier .

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In the absence of any statutory provision in Jersey addressing how dilapidations claims are to be quantified, the Royal Court's decision in JSSL v Barclays has provided some much needed guidance, particularly in circumstances where there is an acceptance that works to redress dilapidations have not been and will not be carried out.

English Supreme Court rules on Mistake and Hastings Bass

May 2013 - Finance. Legal Developments by Ogier .

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On 9 May 2013 the English Supreme Court handed down a unanimous judgment on the seminal cases of Pitt-v- Holt and Futter -v- Futter , with Lord Walker's valedictory judgment conclusively resolving the English position on the rule in Hastings Bass and rescission on the ground of mistake.

Funds Quarterly Legal and Regulatory Update

April 2013 - Finance. Legal Developments by Ogier .

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Period covered: 31 December 2012 to 31 March 2013

Employees on sick leave entitled to carry over annual leave

April 2013 - Finance. Legal Developments by Ogier .

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Ogier has taken a test case to the Employment Tribunal to clarify the law on annual leave entitlement for employees on long term sick leave. 

In a judgment released earlier this month the Tribunal held that staff who are unable to take statutory annual leave due to serious ill health are entitled to carry over that leave to the next holiday year. 

Capita Trustees Ltd, RS, NS, The Trustees in Bankruptcy of RS

April 2013 - Finance. Legal Developments by Ogier .

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The case of Capita Trustees Ltd, RS, NS, The Trustees in Bankruptcy of RS - In the matter of the Dunlop Settlement [2013] JRC 029 concerns an application by Capita Trustees Limited (Capita) in its capacity as trustee of the Dunlop Settlement (the Trust) for approval to it entering into an agreement intended to settle various claims made against the Trust by creditors (the Agreement), the net effect of which would be to exhaust the assets of the Trust.

A Guide to Buying a Flying Freehold Apartment in Jersey

March 2013 - Finance. Legal Developments by Ogier .

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The "Loi (1991) sur la copropriété des immeubles bâtis", also known as the "Flying Freehold Law" (the "Law"), was enacted to enable units (usually apartments) within buildings to be sold on a freehold basis instead of by share transfer. We will assume for the purpose of this briefing that we are dealing with an apartment.

A Guide to Buying a Share Transfer Apartment in Jersey

March 2013 - Finance. Legal Developments by Ogier .

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1.1 Introduction

Buying an apartment by “share transfer” is very different to a freehold purchase and involves buying a block of shares in a company which give rights of occupation to an apartment. As there is no need to attend the Royal Court completion can take place on any day.

In the matter of the B Life Interest Settlement [2012] JRC 229

February 2013 - Finance. Legal Developments by Ogier .

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Facts - This was an application by a Trustee asking the Royal Court to exercise its powers to set aside a Deed of Amendment, a Deed of Exclusion and a Deed of Appointment by reason of mistake and/or seeking relief under the Hastings Bass principle. Thiswas in effect the first opportunity the Court in Jersey had had to consider the Hastings Bass remedy since the Court of Appeal in England's decision in Pitt v Holt and Futter v Futter. The Bailiff had directed that in the instant case an amicus be appointedto argue before the Royal Court on the Hastings Bass issue.

HHH Employee Trust - Settlor awarded its costs on the trustee indemnity basis

February 2013 - Finance. Legal Developments by Ogier .

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Jersey's Royal Court has delivered a landmark decision on the ability of non-trustee fiduciaries to recover costs that they have incurred in connection with the discharge of their fiduciary functions. In the HHH Employee Trust1, the Court found that the costs of administrative proceedings incurred by a settlor with reserved fiduciary powers were recoverable out of the trust fund on the "trustee indemnity" basis.

Costs in trust applications: Jersey's Court of Appeal provides helpful guidance

February 2013 - Finance. Legal Developments by Ogier .

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Introduction

In Trilogy Management -v- YT & Others [2012] JCA 204 Jersey's Court of Appeal has clarified the principles relating to the payment of costs in non-adversarial trust applications. In doing so, it has drawn together approaches established in a number of early cases, and consolidated the position in an area which it said had received only "sporadic consideration" previously. This case is of importance for all trustees who may be contemplating applications to the Court in these circumstances, for example the construction of a trust instrument or the correct administration of a trust. The case differentiates between the costs of trustees and beneficiaries/other convened parties, and also between costs at first instance and costs on appeal.

Jersey Limited Liability Partnerships

January 2013 - Finance. Legal Developments by Ogier .

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Introduction

Legislation has recently been passed by the States of Jersey to amend the Limited Liability Partnerships (Jersey) Law 1997 (the Law). A Jersey Limited LiabilityPartnership (LLP) is a legal person distinct from its partners which can own property, sue and be sued in its own name. Each of its partners is obliged to contribute effort and skill to the business of the LLP as agents of the partnership but not of each other.

Creating a Permanent Establishment in Jersey

January 2013 - Finance. Legal Developments by Ogier .

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The current trend 

There is an increasing need for businesses to ensure that they can demonstrate proper substance in the jurisdictions in which they operate.  Many cross border financing, asset holding or investment structures are coming under scrutiny by various tax or regulatory authorities around the world and Jersey is ideally placed to provide proper substance and a permanent establishment in a tax neutral environment.

Funds Quarterly Legal and Regulatory Update

January 2013 - Finance. Legal Developments by Ogier .

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Period covered: 30 September 2012 to 31 December 2012

Lessons to be learned from EVIC v Greater Europe

January 2013 - Finance. Legal Developments by Ogier .

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Introduction

A recent judgment of Jersey's Royal Court will be of interest to directors and managers of closed ended funds.
The Jersey courts, in line with other common law jurisdictions, have a wide discretion to order a just and equitable winding up pursuant to the Companies Law. Perhaps of most relevance to investment funds is the ordering of a just & equitable winding up on the basis that the company has lost its substratum.

The traditional basis for a loss of substratum is that where it is impossible for a company to carry on the business for which it was established, then it must be wound up, even if the directors or a majority of the shareholders wish the company to continue in business. For these purposes the identification of the business for which the company was established has traditionally included the sector of commerce and also particular features of the manner in which the business was to be carried on.  However, the focus in EVIC v Greater Europe was on the closed-ended nature of the

Jersey and Guernsey Alternative Investment Funds - AIFMD Update

January 2013 - Finance. Legal Developments by Ogier .

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Introduction

After a significant period of negotiation, the level 2 regulations pursuant to the AIFM Directive (the Directive) were issued by the EU Commission on 19 December. The controversial areas of negotiation between EU member states are understood to have been focused particularly on the areas of delegation and depositary requirements.

Royal Court rules on loss of substratum in a Jersey fund

January 2013 - Finance. Legal Developments by Ogier .

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The Royal Court has ordered the winding up of a Jersey closed end fund on just and equitable grounds on the basis of a loss of the fund's substratum. The Court first delivered judgment in August in the case, EVIC v Greater Europe Deep Value Fund II Limited, and following a further hearing last month ordered the winding up of the fund. A further reasoned judgment will follow.

Tracing a new path - The Federal Republic of Brazil & Anor v Durant International Corporation & Ors

December 2012 - Finance. Legal Developments by Ogier .

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Jersey's Royal Court has delivered a landmark judgment1, eschewing long established principles of common law concerning the circumstances in which proprietary claims may be established and when assets may be traced. In a clear statement of Jersey's jurisprudential independence, the Court found that legal interests are subject to equitable tracing rules, that funds may be traced through "black holes" and into mixed bank accounts, that "backwards tracing" is permissible and that the "lowest intermediate balance" principle does not apply in Jersey.

The Glasgow Rangers Tax Case

December 2012 - Finance. Legal Developments by Ogier .

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Background

The Appellants, Murray Group Holdings (MGH), are a large holding company with diverse interests in over 100 companies including, until May 2011, Glasgow Rangers Football Club.  Given Rangers' involvement and their subsequent administration, this case has been widely publicised and has become known as the Rangers tax case.

Jersey CFC Financing Structures

November 2012 - Finance. Legal Developments by Ogier .

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From 1 January 2013 the UK will replace its existing controlled foreign company (CFC) rules with a more limited regime which is intended to improve the UK's international competitiveness as the best location for corporate headquarters in Europe.

On the right terms - Shah v HSBC is a timely reminder to check standard terms and conditions

November 2012 - Finance. Legal Developments by Ogier .

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The recent English High Court decision in Shah v HSBC Private Bank [2012] highlights again the need for banks and trust companies to be aware when they may refuse to transfer cash or assets where there is a suspicion of money laundering. While in this case the High Court implied a term into the bank's terms so that it could refuse to process payments in these circumstances, the Jersey court may not take a similar approach. There is also a possibility of criminal liability if any holder of client money or assets (the financial institution) has no choice but to make a transfer of tainted funds.

Registration under the Security Interests (Jersey) Law 2012

November 2012 - Finance. Legal Developments by Ogier .

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The Security Interests (Jersey) Law 1983 (the 1983 Law) will soon be replaced by the Security Interests (Jersey) Law 2012 (the New Law), which was passed by the States of Jersey on 19 July 2011.  The New Law is expected to come into force in early 2013.

In our related briefing Advantages of the New Security Interests (Jersey) Law, the concept of registration which is to be introduced by the New Law is highlighted as a potential advantage to lenders. Registration is one of the various enhancements which will contribute to the modernisation of Jersey's intangible movable security regime.

Close-out netting and set-off provisions for BVI, Cayman Islands, Guernsey and Jersey counterparties

November 2012 - Finance. Legal Developments by Ogier .

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Introduction

Ogier is counsel to the International Swaps and Derivatives Association, Inc. ("ISDA") in Guernsey and Jersey and provides netting and collateral opinions which are available to members from ISDA's website and updated on an annual basis. We are often asked to advise on the enforceability of close-out netting and set-off provisions under ISDA and other standard form agreements (including prime brokerage agreements) against counterparties incorporated or registered in the BVI, the Cayman Islands, Guernsey or Jersey. This involves an analysis of the extent to which local laws recognise the enforceability of such provisions in pre- and post-insolvency circumstances. The relevant legislation from each jurisdiction is summarised in general terms below. Upon request, we are able to provide opinions in respect of specific counterparties/types of counterparties and agreements.

Jersey cash box and convertible bond transactions

August 2012 - Finance. Legal Developments by Collas Crill.

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The use of cash box structures is becoming increasingly popular as means of facilitating equity or bond issues.

This note summarises the ways in which a UK public company listed on the London Stock Exchange or AIM may raise money using a Jersey company ‘cash box’ company, either by a placing of its shares or through the use of a convertible bond.

The Certified Funds Prospectuses Order

July 2012 - Finance. Legal Developments by Ogier .

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Prospectus Content Requirements - Jersey Investment Funds

Existing statutory prospectus content requirements for Jersey investment funds which fall within the definition of certified funds will soon be replaced by a new prospectuses order, the Collective Investment Funds (Certified Funds - Prospectuses) (Jersey) Order 2012 (the CFPO or the Order). 

Luxembourg Hedge Funds Executive Summary

June 2012 - Finance. Legal Developments by Ogier .

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This executive summary provides a comparative overview only of the two principal Luxembourg fund vehicles used by asset managers pursuing hedge funds strategies. For further detail, please also refer to the full form client briefing “Luxembourg - Complex alternative UCITS & Specialised Investment Funds” which may be accessed via the Luxembourg section of www.ogier.com.

Luxembourg Complex alternative UCITS & Specialised Investment Funds

June 2012 - Finance. Legal Developments by Ogier .

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A founder member of the European Union benefiting fully from free movement of capital and freedom of establishment within the EU, Luxembourg is also one of the largest global financial centres, benefiting from flexible and attractive legal, regulatory and tax regimes and a significant concentration of professional service providers to the financial services industry.

MULTI-JURISDICTIONAL GUIDE 2012 FINANCE

May 2012 - Finance. Legal Developments by Ogier .

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New Security Interests (Jersey) Law: changes to Jersey law and market practice.

Matthew Swan and Bruce MacNeil - Ogier

Securities and investment business regulations in the British Virgin Islands

April 2012 - Finance. Legal Developments by Ogier .

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It has been almost two years since the Securities and Investment Business Act, 2010 (‘SIBA’) in the British Virgin Islands (‘BVI’) was established – coming into eff ect on May 17th 2010.

Jersey Private Placement Funds Investment Funds | January 2012 Next generation structuring

March 2012 - Finance. Legal Developments by Ogier .

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The Private Placement Fund (PPF) is a new type of regulated investment fund vehicle available in Jersey which has been specifically designed for the professional and institutional investor market.

Establishing and Operating a Cayman Investment Fund

January 2012 - Finance. Legal Developments by Ogier .

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A. INVESTMENT FUNDS
1. Documents
1.1 Generally, the documents involved in the establishment of an investment fund in the Cayman Islands include the following:

Special Purpose Acquisition Companies (SPACS)

November 2011 - Finance. Legal Developments by Ogier .

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Following the recovery from the recent financial crisis, there has once again been a growing interest in special purpose acquisition vehicles (SPACs) and offshore jurisdictions such as Jersey, Guernsey, Cayman and the British Virgin Islands are increasingly being used for both the creation and ongoing business structure of such vehicles. These jurisdictions have proven to be ideal for this type of funding structure due to their flexibility and tax efficiency.

Update on AIFM Directive

October 2011 - Finance. Legal Developments by Ogier .

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Impact Analysis for Jersey and Guernsey Investment Funds

After a protracted period of negotiation, the AIFM Directive was finally approved by the European Parliament on 11 November 2010.
The Directive is expected to be brought into force shortly and will regulate the activities of managers of alternative investment funds (“AIF Managers”) as follows:

Security Reviews and Refinancings involving Offshore Entities

October 2011 - Finance. Legal Developments by Ogier .

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It has been estimated that there is European bank and bond debt with a combined value of up to €50-75 billion which is due to mature and come to market for refinancing over the next five years (Refinancing 2011: The Scramble to Refinance European Debt, Debtwire, March 2011). Many lenders are currently in the process of reviewing their loan books in advance of potential refinancings / restrucurings and obtaining security reviews analysing their position under existing structures.

Current developments in Cayman’s legal and regulatory environment

September 2011 - Finance. Legal Developments by Ogier .

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In this issue:
Cayman Court Examines Responsibilities
of Fund Directors . . . . . . . . . . . . . . . . . . . P2-7

UK Operator Services

September 2011 - Finance. Legal Developments by Ogier .

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Ogier Corporate Administration Limited (“OCAL”) is authorised by the UK Financial Services Authority (the “FSA”) to act as an ‘Operator’ to UK unregulated collective investment schemes (“UCISs”)

Structuring Considerations for Hedge Funds

September 2011 - Finance. Legal Developments by Ogier .

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Most open ended funds in Asia are structured using a Cayman Islands company as the fund vehicle. The principal documents governing the contractual relationships between the investor and the fund are the offering memorandum, the subscription agreement and the memorandum and articles of association of the fund.

Special Purpose Acquisition Companies (“SPACs”)

August 2011 - Finance. Legal Developments by Ogier .

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Offshore jurisdictions such as the BVI, Cayman, Guernsey and Jersey are frequently chosen as the jurisdiction of domicile for SPACs.

Private Equity Fund Structuring Considerations

June 2011 - Finance. Legal Developments by Ogier .

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Historically, the most common structure used for private equity funds structured in the Cayman Islands was an exempted limited partnership. However, we have seen a shift recently towards structuring private equity funds as exempted companies.

Private Equity - Listing Debt on the CISX

April 2011 - Finance. Legal Developments by Ogier .

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The Channel Islands Stock Exchange (CISX) has seen a
dramatic increase in the listing of quoted Eurobonds.
Many of these Eurobonds have been issued in
connection with private equity transactions. Typically the
debt issuing entity will be a UK tax resident company
formed in connection with a private equity funded
acquisition.

A guide to Investment funds in Jersey

April 2011 - Finance. Legal Developments by Ogier .

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The investment funds industry in Jersey has achieved significant growth in recent years. Statistics show that as at 30 September 2010 there were £179 billion of assets under management in Jersey. The Island has developed into a leading jurisdiction for the establishment of investment funds and a large number of Jersey funds are listed on the London and other stock exchanges. Jersey and Guernsey established the Channel Islands Stock Exchange where special procedures exist to facilitate the listing of Jersey and Guernsey investment funds. (Please visit www.cisx.com for further information).

Insolvency procedures in respect of Jersey companies

April 2011 - Finance. Legal Developments by Ogier .

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The credit crunch has put pressure on a wide range of structures and, as a result, lenders, borrowers and other counterparties are looking more closely at the impact of possible insolvency proceedings. As Jersey companies have often been used in cross-border finance transactions, it is important to be aware of the differences between Jersey and English insolvency procedures for companies.

Offshore Trusts

March 2011 - Finance. Legal Developments by Ogier .

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Introduction This briefing is intended to provide a general overview of some of the factors to be considered by clients and their advisers in the establishment of a trust in BVI, Cayman, Guernsey, Jersey or New Zealand.

Representation of R M Talbot Estate

March 2011 - Finance. Legal Developments by Ogier .

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Representation of R M Talbot Estate - application by a trustee to vary a will of Jersey situate personal estate

France and Jersey Tax Agreement

February 2011 - Finance. Legal Developments by Ogier .

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Exemption from French 3% Real Estate Tax

Listing a BVI Company on London’s Alternative Investment market

February 2011 - Finance. Legal Developments by Ogier .

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This briefing is intended to provide a summary of some of the legal requirements and considerations applicable to the use of an offshore company for listing on the Alternative Investment Market (“AIM”). It is not, however, intended to be comprehensive in its scope and it is recommended that a client seeks legal advice on any proposed transaction prior to taking steps to implement it.

Incorporating Joint Venture Companies in the British Virgin Islands

February 2011 - Finance. Legal Developments by Ogier .

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When setting up a joint venture involving parties from different countries, the international angle makes the choice of jurisdiction for the incorporation of the joint venture company (“JVC”) a crucial one.

Enforcement of Jersey Security Agreements

January 2011 - Finance. Legal Developments by Ogier .

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As the credit crunch continues to impact on the global economy and banking covenants come under greater pressure, lenders are increasingly examining the detail of their security packages in order to identify the various enforcement options open to them.

Statutory Netting, Contractual Subordination and Non-Petition Provisions under Jersey Law

January 2011 - Finance. Legal Developments by Ogier .

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As financing transactions have become more sophisticated over the last decade, it has been common for parties to a transaction to agree in advance matters relating to:

Channel Island Stock Exchange - Debt Listing

January 2011 - Finance. Legal Developments by Ogier .

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The Channel Islands Stock Exchange, LBG (‘CISX’ or the ‘Exchange’) offers:

Channel Island Stock Exchange - Continuing Obligations for Issuer’s with listed Debt Securities

January 2011 - Finance. Legal Developments by Ogier .

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This Client Briefing has been prepared for the assistance of directors of companies listing “debt securities” as defined in Chapter 1 of the listing rules (the Listing Rules) of the Channel Islands Stock Exchange (the Exchange) under Chapter VIII of the Listing Rules.

BVI Public Funds Code 2010

January 2011 - Finance. Legal Developments by Ogier .

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The FSC releases the Public Funds Code to supplement SIBA and the Mutual Funds Regulations.

Wealthbriefing - Knowing or Unknowing Receipt

December 2010 - Finance. Legal Developments by Sinels .

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In the recent case of Bagus Investments v. Kastening , the Royal Court of Jersey signalled that the English claim of ‘knowing receipt’ might be known in Jersey law.

Channel Island Stock Exchange - Continuing Obligations for Issuer’s with listed Debt Securities

December 2010 - Finance. Legal Developments by Ogier .

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This Client Briefing has been prepared for the assistance of directors of companies listing “debt securities” as defined in Chapter 1 of the listing rules (the Listing Rules) of the Channel Islands Stock Exchange (the Exchange) under Chapter VIII of the Listing Rules.

Channel Island Stock Exchange - Debt Listing

December 2010 - Finance. Legal Developments by Ogier .

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The Channel Islands Stock Exchange, LBG (‘CISX’ or the ‘Exchange’) offers:

Investment Funds in Bahrain and Offshore

November 2010 - Finance. Legal Developments by Ogier .

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There are many options available to promoters as to which domicile to choose for their fund and different factors, such as the preferences of seed investors or regulatory requirements may be important. This briefing highlights some of the different investment fund products available in Bahrain, the British Virgin Islands (‘BVI’), the Cayman Islands (‘Cayman’), Guernsey and Jersey and provides some background on each of those jurisdictions.

Update on AIFM Directive

November 2010 - Finance. Legal Developments by Ogier .

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Impact Analysis for Jersey and Guernsey Investment Fund

Fairfield Funds: Update

November 2010 - Finance. Legal Developments by Ogier .

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Liquidators were appointed over Fairfield Sentry Limited, Fairfield Sigma Limited and Fairfield Lambda Limited (together “the Funds”) by orders of the BVI High Court dated 21 July 2009, 21 July 2009 and 23 April 2009 respectively.

The New Security Interests (Jersey)

November 2010 - Finance. Legal Developments by Ogier .

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The creation of security over intangible movables under Jersey law is currently governed by the Security Interests (Jersey) Law 1983. After a period of consultation, the new Security Interests (Jersey) Law is in a close-to-final form. The new Law will add certainty and flexibility at a time when economic conditions have led to a greater focus on protection of collateral.

Mischca Trust & Butterfield Trust (Guernsey) v Thommessen et al.

November 2010 - Finance. Legal Developments by Ogier .

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This case concerned five applications involving the Mischca Trust. The first application (the “Butterfield Application”) was made by the trustee of the Mischca Trust to request confirmation from the Court that the setting up of the International Fund for Arts and Sciences (‘IFAS’) charitable trust by them was lawful.

Dominion Corporate Trustees Limited & Dominion Trust Limited v Capmark Bank Europe PLC

October 2010 - Finance. Legal Developments by Ogier .

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The claimants are the joint trustees (the “Trustees”) of a Jersey property unit trust (the “Trust”), formed as a vehicle for holding real property in the United Kingdom (the “Property”).

Jersey Court Upholds Bank’s Security Under Security Interest Agreement

October 2010 - Finance. Legal Developments by Ogier .

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In the recent case of Mirpuri vs Bank of India ([2010] JRC 129), the Royal Court of Jersey was asked to consider what powers a secured party could exercise to protect its security. In addition, the court made a number of comments on variation of contract, estoppel and mitigation of loss.

Mischca Trust & Butterfield Trust (Guernsey) v Thommessen et al.

October 2010 - Finance. Legal Developments by Ogier .

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This case concerned five applications involving theMischca Trust. The first application (the “ButterfieldApplication”) was made by the trustee of the MischcaTrust to request confirmation from the Court that thesetting up of the International Fund for Arts and Sciences(‘IFAS’) charitable trust by them was lawful.  

In the Matter of the Ta-Ming Wang Trust, 12 April 2010 (Unreported)

August 2010 - Finance. Legal Developments by Ogier .

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In this recent case, the Grand Court held that the Hastings Bass principle applied, not just to the actions and decisions of a trustee, but also to the actions and decisions of directors of a company owned by the Ta- Ming Wang Trust (the “Trust”), in declaring dividends, at the instance of the trustee in favour of the trustee; but that, on the available evidence, the decision of the directors could not be impugned.

In the Matter of the AE Settlement [2010] JRC085

August 2010 - Finance. Legal Developments by Ogier .

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The case concerned an application for directions made by the corporate trustee (the “Trustee”) in relation to the underlying assets of three Jersey trusts: the AE Settlement, the CE Settlement and the IE Settlement (together, the “Trusts”).

Offshore Trusts

August 2010 - Finance. Legal Developments by Ogier .

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This briefing is intended to provide a general overview of some of the factors to be considered by clients and their advisers in the establishment of a trust in BVI, Cayman, Guernsey or Jersey.

When is a Redemption Effective?: Reserve International Liquidity Fund Ltd

July 2010 - Finance. Legal Developments by Ogier .

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The British Virgin Island’s Commercial Court has recently delivered a decision in Western Union International Limited v Reserve International Liquidity Fund Ltd which addresses the issue of when during the redemption process a redeeming investor becomes a creditor of the fund and is therefore entitled to apply for the appointment of a liquidator.

Securities and Investment Business Act, 2010 - Key Considerations for Existing BVI Funds

July 2010 - Finance. Legal Developments by Ogier .

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With the enactment of the Securities and Investment Business Act, 2010 (“SIBA”) in the BVI, which comes into force on 17 May 2010, the Mutual Funds Act, 1996, the statute which has regulated the BVI funds industry for more than a decade will be repealed and replaced by SIBA (of which Part III relates to funds) and its underlying secondary legislation, the Mutual Funds Regulations, 2010 (the “Mutual Funds Regulations”) and the Public Funds Code.

Securities and Investment Business Act, 2010

July 2010 - Finance. Legal Developments by Ogier .

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With the enactment of the Securities and Investment Business Act, 2010 (“SIBA”) in the BVI, which came into force on 17 May 2010, the regulation of the BVI’s financial services industry has undergone a number of significant changes. These changes may affect your BVI entities.

Exchange Traded Commodities (“ETCs”)

July 2010 - Finance. Legal Developments by Ogier .

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The ETC market is one of the fastest growing investment segments in the Exchange Traded Product market. Jersey remains a popular jurisdiction for the creation of ETC issuance vehicles and this briefing outlines some of the benefits of using Jersey and Ogier to establish ETC structures.

Convertible Bonds - Jersey Cashbox Structures

July 2010 - Finance. Legal Developments by Ogier .

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2009 saw the revival of the convertible bond market in Europe and commentators expect continued activity in this market in 2010 as corporates continue to diversify sources of funding away from bank lending coupled with strong investor demand.

COMI: New Developments for Offshore Liquidators

July 2010 - Finance. Legal Developments by Ogier .

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National interests play a distinct part in application of the UNCITRAL model law on cross-border insolvency.

Cash Box Transactions - The Use of Jersey Companies

July 2010 - Finance. Legal Developments by Ogier .

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This briefing document explains how a United Kingdom public limited company (‘PLC’), which is listed on the main list of the London Stock Exchange or on AIM, may use a Jersey company in a ‘cash box’ transaction where PLC is raising money either through a placing of its shares, a rights issue or where a convertible bond is issued.

Offshore Equity Transactions: Implications of Recent Changes to Corporate Tax Law in China

July 2010 - Finance. Legal Developments by Ogier .

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The Chinese State Administration of Taxation (“SAT”) issued Circular [2009] No. 698 (“Circular 698”) on 10 December 2009. Circular 698 addresses various tax issues on equity transfers by non-Chinese tax resident enterprises. It applies retroactively from 1 January 2008 and covers direct and indirect sales by non-Chinese tax resident enterprises of unlisted shares of Chinese tax resident enterprises.

Lochmore Trust

July 2010 - Finance. Legal Developments by Ogier .

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The settlor applied to court to set aside the Lochmore Trust (the “Trust”) on the grounds of the settlor’s mistake, and all beneficiaries of the Trust had confirmed their consent to the application. Tax advice that the settlor received suggested that shares held by Lochmore (as nominees for the settlor) (the “Shares”) ought to be contributed to the Trust for CGT savings, which contribution being made by way of sale with the price outstanding as a loan rather than a gift into the trust, to avoid an IHT charge at 20%, as the settlor was deemed to be domiciled in the UK for IHT purposes.

Securities and Investment Business Act, 2010

June 2010 - Finance. Legal Developments by Ogier .

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After much anticipation, the British Virgin Islands (“BVI”) enacted the Securities and Investment Business Act, 2010 on 12 April 2010 (“SIBA”). SIBA, which came into force on 17 May 2010 (with the exception of the provisions relating to public issues of securities), takes into full account current and emerging international standards of regulation as they relate to the regulation and administration of investment funds (including hedge funds) and entities conducting investment or securities business. It represents an extremely important step for the ongoing development and growing sophistication of the financial services sector within the BVI. It also provides a user friendly statute, in tune with the current regulatory environment, which will complement the BVI Business Companies Act, 2004 and the Insolvency Act, 2003.

Offshore Equity Transactions: Implications of Recent Changes to Corporate Tax Law in China

June 2010 - Finance. Legal Developments by Ogier .

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The Chinese State Administration of Taxation (“SAT”) issued Circular [2009] No. 698 (“Circular 698”) on 10 December 2009. Circular 698 addresses various tax issues on equity transfers by non-Chinese tax resident enterprises. It applies retroactively from 1 January 2008 and covers direct and indirect sales by non-Chinese tax resident enterprises of unlisted shares of Chinese tax resident enterprises.

Administration Orders - Letters of Request to the UK Court

June 2010 - Finance. Legal Developments by Ogier .

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This is the latest decision of the Royal Court in relation to an application by a UK creditor (a bank) for a letter of request to be issued to the English High Court requesting that an administration order be made in respect of a Jersey company.

The AML/CFT Handbook for Regulated Financial Services Business

February 2010 - Finance. Legal Developments by Ogier .

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On 23 December 2009 the Jersey Financial Services Commission (“JFSC”) published an additional trust company business section (the “Section”) to its Handbook for the Prevention and Detection of Money Laundering and the Financing of Terrorism (the “Handbook”).

Investment Funds Global

January 2010 - Finance. Legal Developments by Ogier .

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Current developments in the global investment funds legal and regulatory environment

Ogier Fiduciary Services – Trustee Services Japan

November 2009 - Finance. Legal Developments by Ogier .

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The Ogier Group is the world’s largest offshore law firm with a presence in nine jurisdictions around the world and employing over 800 professional and support staff including more than 220 lawyers and 300 professional administrators.

Hybrid Structured Funds

October 2009 - Finance. Legal Developments by Ogier .

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Global issuance of collateralised debt obligations and synthetic equivalents in 2007 reached US$269 billion but by the end of 2008 had dropped to US$71 billion (source: Creditflux). Recent market activity suggests that a growing number of investment finance vehicles are being structured not as CDOs issuing rated debt, but as hybrid investment funds. A combination of the various factors summarised below is expected to result in permanent changes to the structure of the investment capital markets.

Hedge fund side letters and in specie payments of redemption proceeds

September 2009 - Finance. Legal Developments by Ogier .

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A recent decision of the British Virgin Islands High Court in SV Special Situations Fund Limited (SV) v Headstart Class F Holdings Limited (Headstart) should be treated by investors and hedge fund managers as a cautionary tale to consider carefully the terms of any side letters.

Latest Developments in the OECD standing of the Cayman Islands & the British Virgin Islands

September 2009 - Finance. Legal Developments by Ogier .

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The Organisation for Economic Cooperation and Development (“OECD”) at the G-20 Summit in April this year developed a three-tiered classification for offshore financial centres according to an internationally agreed standard. An offshore financial centre may be classified as ‘white’, ‘grey’ or ‘black’ based on the number of Tax Information Exchange Agreements (“TIEA”s) entered into. A classification of ‘white’, the highest distinction denoting substantially implemented agreed tax standards, requires an offshore financial centre to have entered into a minimum of 12 TIEAs.

Should costs be borne by the income or capital of the Trusts Fund?

July 2009 - Finance. Legal Developments by Ogier .

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This English law case was an application by Close Trustees (Switzerland) SA and Close Brothers Trust Company (the “Trustees”) in respect of a trust where the life tenant was entitled to the income. After the life tenant’s death the capital would be held for the benefit of her children. The life tenant was seeking damages and compensation from both the investment management companies and the Trustees and Protector for losses in respect of the performance of investments held in the trust through the Californian Courts. The Trustees sought the approval of the Court for the retention of a proportion of the income which would otherwise be paid out to the life tenant to ensure that funds were available to reimburse the Trustees’ legal costs. The case did not consider whether the Trustees were entitled to be reimbursed for their legal costs as this would depend upon the outcome of the Californian case, but just whether the retention was permissible given the effect that this would have on the life tenant’s income.

Lloyds TSB Busted for 'Stripping'

April 2009 - Finance. Legal Developments by Baker & Partners.

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The U.S. Government has asserted jurisdiction over a non U.S. person for the first time and levied the largest ever penalty for violations of U.S. sanctions.

On January 9th 2009 the British Bank Lloyds TSB entered into a deferred prosecution agreement with the U.S. Department of Justice (DOJ) and the New York County District Attorney’s office (NYDA) concerning the bank’s admitted non-compliance with the OFAC sanctions regime pertaining to Iran and Sudan.

Potential Uses of the Jersey Foundation

April 2009 - Finance. Legal Developments by Ogier .

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Foundations to be established under the Foundations (Jersey) Law 200[-] (the “Law”) are vehicles for holding assets. They will be incorporated and therefore have separate legal personality. Foundations must be established with one or more objects. With the sole caveat that the objects must be lawful, they can be charitable, non-charitable or a mixture of both. Permissible objects might include, for example, benefiting a particular person or class of persons or carrying out a specific purpose or holding a particular asset.

What is a Foundation?

April 2009 - Finance. Legal Developments by Ogier .

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Foundations are vehicles for holding assets. The Foundations (Jersey) Law (the “Law”) will now permit Foundations to be created under the law of Jersey.

Why Fiction is Clouding Fact - A Comparative Review of Jersey’s Efforts to Counter Financial Crime

February 2009 - Finance. Legal Developments by Baker & Partners.

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An article published in the Observer newspaper on 14 December 2008  contained the utterly misconceived assertion that ‘The financial crisis began with the collapse of the structured investment vehicles, which accountants and lawyers working offshore put together’. The article went on, rather brazenly, to state that ‘transparency and openness’ are ‘virtues that the offshore banking industry hates with a passion’. Those statements are made without reference to any empirical evidence. The article could simply and accurately be regarded as a misguided ramble by someone with little knowledge of his chosen subject, were it not for the fact that it is another example of the misplaced but increasing hostility to offshore financial centres. That hostility has certainly intensified as a result of the global financial crisis. We have seen politicians on both sides of the Atlantic applying pressure; the Stop Tax Haven Abuse Bill in the US Senate and, in the UK, the announcement in the pre budget report of a review of the Crown Dependencies and Overseas Territories  are further examples to which the EU’s indirectly discriminatory White list , President Sarkozy’s recent call for a ‘crack down’ on tax havens  and Joseph Stiglitz call for them to be ‘shut down’  can all be added.

A Guide to Investment Funds in the British Virgin Islands

January 2009 - Finance. Legal Developments by Ogier .

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The success of the final product is dependant on making many decisions. Whether they are; determining the target market, determining what type of investment fund is required, which compliance and regulatory regime will best suit the circumstances, establishing distribution channels, or introducing systems and procedures to support the operation of the fund, Ogier is in a position to assist you from the outset.

A Guide to Investment Funds in the British Virgin Islands

November 2008 - Finance. Legal Developments by Ogier .

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The success of the final product is dependant on making many decisions. Whether they are; determining the target market, determining what type of investment fund is required, which compliance and regulatory regime will best suit the circumstances, establishing distribution channels, or introducing systems and procedures to support the operation of the fund, Ogier is in a position to assist you from the outset.

A Guide to Investment Funds in the

September 2008 - Finance. Legal Developments by Ogier .

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The success of the final product is dependant on making many decisions. Whether they are; determining the target market, determining what type of investment fund is required, which compliance and regulatory regime will best suit the circumstances, establishing distribution channels, or introducing systems and procedures to support the operation of the fund, Ogier is in a position to assist you from the outset.

A Legal Road Map for Securitisation of Assets and other

September 2008 - Finance. Legal Developments by Ogier .

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The last couple of years have witnessed a formidable increase in the number of securitisation transactions completed in the British Virgin Islands, and there is much hope that the market share of the jurisdiction in the industry of offshore securitisations and structure finance transactions will continue to growth as it did its market share in the global investment funds industry.

Is there still a role for a Protector in trusts?

November 2007 - Finance. Legal Developments by Baker & Partners.

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Potential settlors who may be considering placing assets into a trust tend to be concerned to ensure that there is an appropriate control over the manner in which the trustee administers the trust – naturally the law and regulatory requirements provide some control, but where a settlor seeks to ensure that his individual concerns and wishes are reflected in the administration of a trust, trust law has developed the role of the Protector, which is, or at least has been, an important role.