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A trustee's duty of confidentiality has recently been discussed and to some extent clarified in the recent Guernsey Court of Appeal decision of In re B; B v T (Court of Appeal, 11 July 2012). This summary has been prepared to provide you with a summary of the case as well as the general issues raised, but is not intended to cover all matters or to provide commentary. This summary does not constitute legal advice.
The Companies (Guernsey) Law, 2008 ("Companies Law") provides for companies, protected cell companies ("PCCs"), incorporated cell companies ("ICCs") and cells of PCCs and ICCs to be placed into administration and for an administrator to be appointed to manage that entity's affairs whilst the administration order remains in force. The concept of administration in Guernsey was first introduced for PCCs only in 1997 but has expanded its scope to cover all other types of company that can be registered in Guernsey. Administration, like the equivalent procedure in other jurisdictions, provides insolvent companies with a breathing space in order to maximise realisations and asset values without increasing liabilities, which, in turn, favours creditors. However it is important to note, at the outset, that there are substantive differences from a creditor's perspective between the process in Guernsey and, for example, England.
Pursuant to section 374 of the Companies Law, a company, PCC, ICC or cell may be placed into administration by the Royal Court upon the application of certain parties. During the term of the administration order, the affairs, business and property of the company are managed by an administrator who is appointed by the court for that purpose. The Royal Court will only make an administration order if various requirements are fulfilled. These are that the entity in question must fail or be likely to fail the "solvency test" as set out in section 527 of the Companies Law, and that one or both of the purposes of administration (as set out below) may be achieved by the making of the administration order. For the rest of this note, and for the sake of brevity, the term "company" also refers to PCCs, ICCs and their cells, unless otherwise stated.
The Image Rights (Bailiwick of Guernsey) Ordinance 2012 (the Ordinance) and The Image Rights (Bailiwick of Guernsey) Regulations, 2012
The Foundations (Guernsey) Law, 2012 (Law) is awaiting Royal assent, expected to be given by the end of the year or early next year. Whilst Guernsey is not the first jurisdiction to provide for foundations, the Law does provide a number of unique options for individuals wishing to take advantage of the benefits provided by foundations. The purpose of this note is to provide both a general summary of the features of a Guernsey foundation, as well as a summary of these unique options that will be available under the Law.
Guernsey law permits a purpose trust to be established with a particular purpose stated in the trust instrument and for which there are no ascertainable beneficiaries.
This document is intended to provide a brief overview of the principal legal and regulatory considerations to be taken into account when establishing a new closed-ended fund (a "Fund") in Guernsey.
This document is intended to provide a brief overview of some of the legal and regulatory considerations to be taken into account when establishing a new open-ended fund (a "Fund") in Guernsey.
Basics of a Guernsey company
•Governed by the Companies (Guernsey) Law, 2008, as amended (“GCL”)
•Full capacity (objects are unrestricted unless restricted in the memorandum)
•Company can have:
Following a period of turmoil in the financial markets, issuers have been viewing cash box structures as an attractive financing tool to facilitate share and convertible bond issues and to allow access to alternative sources of funding.
As a politically stable and fiscally advantageous financial centre, Guernsey is a prime jurisdiction in which to incorporate a special purpose vehicle (“SPV”) as the issuer of sukuk or as part of any other Islamic finance transaction.
Ogier Corporate Finance Limited (OCFL) is the market leader in providing listing agent services for the listing of securities on the Channel Islands Stock Exchange (CISX or the Exchange) having sponsored over 445 listings.
The Channel Islands Stock Exchange, LBG (the Exchange or CISX) commenced operations on 27 October 1998 and is intended to provide recognised facilities for the listing and trading of securities issued by companies and investment funds.
The investment funds industry in Guernsey has achieved significant growth in recent years. Statistics show that as at 30 June 2011 there was £274.5 billion of assets under management in Guernsey.
On 15th December 2008, changes were made to the regulation of investment funds in Guernsey. Those changes created two regulatory regimes for collective investment schemes in Guernsey:
• registered investment schemes; and
• authorised investment schemes.
This briefing note analyses the differences between the two regimes.
Ben Morgan and Geoff Ward-Marshall - Carey Olsen
Tom Carey and Tony Lane - Carey Olsen
1. What is the structure of the retail funds market? What have been the main trends over the last year?
Table of Contents
Introduction to Guernsey 1
About Carey Olsen 2
Fund Regulations in Brief 2
Investment Business 3
Collective Investment Schemes 3
This memorandum has been prepared for the assistance of clients considering establishing a fund under the laws of Guernsey. It is intended to provide only a summary of the main legal requirements and general principles applicable to establishing a fund in Guernsey and it is not intended to be comprehensive in its scope. It is recommended that a client seeks legal advice on any proposed transaction prior to taking steps to implement it.
Introduction The Guernsey Financial Services Commission (the GFSC) has recently issued the final form of the Code of Corporate Governance for the Finance Sector (the Code) which will take effect from 1 January 2012. Its stated purpose is to provide boards and individual directors with "a framework for sound systems of company governance".
New data: funds reach record high; insurance sector shows growth; mixed news for banking
The Bailiwick of Guernsey comprises the inhabited islands of Guernsey, Alderney, Sark, Herm, Jethou and Brecqhou. The islands are situated in the Bay of St. Malo, with their closest point being 8 miles (13 km) from the Cherbourg peninsula. The Bailiwick is in the same time zone as the United Kingdom.
The Island of Guernsey is 24 square miles in size with a population of 65,000. It is situated in the English Channel just off the north west coast of France, in the Bay of St Malo and just 75 miles south of Weymouth in England. It is governed by the States of Guernsey. The Channel Islands are divided into two Bailiwicks; Jersey and Guernsey (the latter of which also comprises the smaller islands of Alderney, Sark, Herm and Jethou).
Guernsey is a self-governing dependency of the British Crown and does not form part of the United Kingdom. By constitutional convention established over some 900 years the Island has complete autonomy in all matters of internal government, including taxation. The legal system is derived in part from the customary laws of Normandy but has been strongly influenced by English law in trust, company and commercial matters and the Judicial Committee of the Privy Council remains the Island’s ultimate court of appeal.
The principal law governing investment funds and licensees in Guernsey is The Protection of Investors (Bailiwick of Guernsey) Law, 1987 (the “POI Law”). This law was overhauled in 2008 primarily to bring the regimes for open and closed ended investment schemes under one law. New rules were published and came into force at the end of last year; the Authorised Closed Ended Investment Schemes Rules 2008; the Registered Collective Investment Scheme Rules 2008; and the Prospectus Rules 2008.
This memorandum has been prepared for the assistance of clients considering carrying out investment fund business in Guernsey. It is intended to provide only a summary of the main legal requirements and general principles applicable to investment fund business in Guernsey and is not intended to be comprehensive in its scope. It is recommended that a client seeks legal advice on any proposed transaction prior to taking steps to implement it.
Following the recent changes to the Protection of Investors (Bailiwick of Guernsey) Law, 1987, as amended (the “POI Law”) and the Control of Borrowing (Bailiwick of Guernsey) Ordinance, 1959, as amended (“COBO”) (as summarised in the recent Carey Olsen Client Briefing “Protecting Investors”) the Guernsey Financial Services Commission (the “GFSC”) has published new rules (the “New Rules”) to govern:
As we live through the impact of credit crunch Michael Sproule of Atkinson Ferbrache Richardson foresees a tougher regime of performance standards for Banks and their Boards in meeting the requirements of best practice.
Trusts are increasingly used as the prevalent feature of international estate planning. Partly this is a result of the Hague Convention on the Recognition of Trusts giving trusts more publicity and making those in civil law jurisdictions more comfortable with them; partly it derives from the increasing international mobility of people who want trusts as a flexible and reliable means of holding assets and managing their disposition in lifetime and devolution on death.