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Laws and Orders registered but not yet in force
The Banking Business (Amendment No. 7) (Jersey) Law 2011 has been registered in the Royal Court and will come into force on a day to be appointed by the States of Jersey.
Laws and Orders brought into force in 2012
The Banking Business (General Provisions) (Amendment No. 3) (Jersey) Order 2011 came into force on 25 January 2012. The Order amends the Banking Business (General Provisions) (Jersey) Order 2002 in relation to deposit taking.
REO (Powerstation) Limited and Others (7th December 2011) JRC 232A: letters of request for...
administration orders
An application had been made by Bank of Scotland Plc and the Governor and Company of the Bank of Ireland (the Applicants) for a letter of request to be sent by the Royal Court of Jersey to the High Court of England and Wales in respect of four Jersey companies which were ultimate beneficial owners of English real estate.
Bird Charitable Trusts: Duty of disclosure of legal advice to an incoming trustee
In the matter of the Bird Charitable Trust and the Bird Purpose Trust [2012] JRC006 concerned an application by the current trustee (the Current Trustee) of two trusts (the Trusts) for an order requiring a former trustee (the Original Trustee) to disclose to the Current Trustee certain legal advice that the Original Trustee had obtained at the cost of the Trusts during the course of its administration.
Representation of BBB: the interpretation of Excluded Person
In Representation of BBB the Royal Court was asked to consider whether an Excluded Person would cease to be an Excluded Person if a change in circumstances meant that they no longer fell within the definition of the class of Excluded Persons.
Guernsey Incorporated Cell Companies
This briefing note describes the key features of the incorporated cell company (“ICC”) and summarises the formation, structure and liquidation procedures particular to this type of company.
A Diverse Business: Guernsey’s Insurance Sector
Guernsey is renowned for its captive insurance industry – a large proportion of which provides general insurance cover to UK parents, many of them listed companies.
In the Matter of HHH Trust and in the Matter of the A Fund and in the Matter of Article 51...
of the Trusts (Jersey) Law 1984: Directions for disclosure
The directions given in this case provide guidance on the approach the Court will take to a beneficiary's request for disclosure of information.
Jersey Company Law
Steven Meiklejohn praises Mark Dunlop’s comprehensive and authoritative commentary on a complex area of law
TRUSTS: duty of outgoing trustee to hand over trust documents and information to incoming trustee
In the matter of the Bird Charitable Trust and the Bird Purpose Trust [2012]JRC006 5 January 2012
In the recent case of In the matter of the Bird Charitable Trust and the Bird Purpose Trust the Royal Court of Jersey had to consider the nature of an outgoing trustee's obligation to hand over documents and information to an incoming trustee upon retiring as a trustee.
The New Security Interests (Jersey) Law 201- (the "New SIL") (yet to come into force)
An executive summary - January 2012
The new Security Interests (Jersey) Law 201- (yet to come into force) (the“ ”) was approved by the States Assembly on 19 July 2011 and has been sent to the Privy Council for approval.
Directors' concerns: Distributions and dividends
Distributions and dividends
Ever since the legal concept of the company was created, there has been discussion about what the purpose is of companies and why they should exist.
To Earmark Or Not To Earmark
This briefing sets out some of the concerns that clients are sharing in relation to earmarking trust assets for share plan management and a practical solution to this problem.
Incorporating a Guernsey Company
Guernsey is a popular jurisdiction in which to incorporate companies for use on a wide range of transactions, including investment funds, private equity, structured finance and securitisations.
THE BRIBERY ACT 2010 – ITS PROVISIONS AND IMPLICATIONS
The UK's new Bribery Act has been long in the making. After much debate and speculation, sometimes informed and sometimes not, it is to come into force later this summer, namely on 1 July 2011. It represents a determined assault on corrupt practices, taking an approach which is more severe and extensive in its reach than comparable legislation elsewhere, including even the US Foreign Corrupt Practices Act.
A Brief guide to Mauritius
The Channel Island law firm Bedell Cristin opened its office in Mauritius in November and Bedell Trust Company was also recently granted approval for a management company to provide fiduciary services in the island republic. Mark Helyar, explains the work Bedell has been doing in the jurisdiction and the opportunities it presents for closer ties with the Channel Islands.
Royal Court appoints Joint Administrators to Propinvest Group Limited
The Royal Court has delivered its first judgment on a contested company administration application since the introduction of the Companies (Guernsey) Law, 2008. The Court has ordered the appointment of Joint Administrators to Propinvest Group Limited, the Guernsey holding company of a substantial property group.
Jersey Cash Box Structures - December 2011
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.
Sinels Quaterly Review
Can trustees exclude liability for gross negligence?
Lifting the corporate veil in Jersey
Intelligence and the Bribery Act 2010
Philip Sinel is awarded Dispute Resolution Lawyer of the Year in Jersey
Limited Partnerships Bill approved in Mauritius
The Limited Partnerships Bill 2011 was approved in Parliament on 19 October 2011 and is expected to receive the assent of the President of the Republic shortly. This new legislation was long awaited by professionals in the funds industry and it will attract significant interest for setting up new fund structures with a limited partnership ("LP") structure. This new vehicle will be useful in ensuring tax efficient and transparent fund structures.
What is a Notary Public?
A notary public is a qualified lawyer who also has additional powers to certify and confirm facts and documents. A notary
is subject to regulation by the Notaries Court of Faculties. All Notaries registered in Jersey can perform notarial acts in
Jersey but not elsewhere.
France gets tough on trusts
We have been working in recent weeks with a number of clients on the new rules passed this summer in France affecting trusts. These new rules are far reaching, draconian and they come into effect soon ie. 1 January 2012.
The Bribery Act 2010 - Practical Guidance for Jersey Companies
The Bribery Act 2010 (the “Act”) came into force on 1 July 2011. Whilst the Act is UK legislation which is not directly applicable to Jersey, its far reaching provisions mean that it does impact on Jersey based companies and individuals with connections to the UK. It is therefore important that Jersey based companies and their officers are aware of the impact of the Act, the offences under the Act and how to protect themselves.
AIM
According to Marcus Stuttard, head of AIM, the market has continued to demonstrate its important role in the funding cycle.
States of Jersey adopt Trust Law Amendment No 5
On Thursday 3 November 2011 the States of Jersey formally adopted Amendment No 5.
Guernsey authorities release guidance on tipping-off offences
Her Majesty’s Procureur (Attorney General) in Guernsey has taken the very unusual step of issuing public guidance regarding tipping-off offences under the Terrorism Law 1 and Disclosure Law.2
In the matter of the representation of BB, A and C: validity of appointment of successor trustees
This case concerned the invalid exercise of a power of appointment of trustees. The Royal Court of Jersey refused to order the rectification of the relevant appointments, but it was prepared instead to provide relief by ratifying the would-be trustees' prior actions and by appointing them properly under Article 51 Trusts (Jersey) Law 1984 (the "Trusts Law").
Private Equity Services for Fund Managers
Your choice of offshore advisor is an increasingly important factor in the successful development and delivery of your fund strategy.
Cayman Hedge Fund Judgment Brings Directors' Duties Starkly Into Focus
In August, the Grand Court of the Cayman Islands handed down its judgment in the case of Weavering Macro Fixed Income Fund Limited (in liquidation) v Stefan Peterson and Hans Ekstrom (the "Judgment"), and it has triggered a frisson of excitement in the industry for the extent to which the Court has sought to establish how directors of Cayman Islands openended funds should approach the discharge of their fiduciary and other duties to the funds of which they are directors.
Jersey Separate Limited Partnerships versus Scottish Limited Partnerships - which are better?
Introduction
The Separate Limited Partnerships (Jersey) Law 2011 introduced the Separate Limited Partnership into Jersey law.
Directors' concerns: Who is (and who is not) a director?
The Companies (Jersey) Law 1991 sets out the meaning of "director" in these terms: "director" means a person occupying the position of director, by whatever name called It is a definition that is, paradoxically, both straightforward and circular and it raises issues that are difficult enough to need to have been considered by the Supreme Court in a recent case about a similar English law provision.
The role of natural justice and legitimate expectations in trustees' decisions
In the Matter of the Y Trust [2011] JRC 135
In this case, the Court provided some helpful guidance on its approach to applications by trustees for blessing of their decisions, which included consideration of the role of the principles of natural justice and legitimate expectations in the decision making process and the position where the decision at issue has already been part performed.
Representation of Dunlop Settlement [2011] JRC138: recovery of trust documents from third party
This case concerns an application of a trustee to recover documents relating to a trust from the JFCU following the seizure of those documents from a former employee as part of a fraud investigation.
Representation of U
Application by trustee for directions concerning disclosure of confidential information
Representation of U [2011] JRC 131 is a Jersey trust case in which the trustee of a Jersey law trust sought directions as to whether it should disclose confidential financial information to a person designated as an excluded person ("B")) under the terms of the trust.
Advantages of the New Security Interests (Jersey) Law
The Security Interests (Jersey) Law 1983 (the “1983 Law”) governing security over intangible movable property in Jersey (eg shares, units, accounts and contractual rights) has been in force for almost three decades. While the 1983 Law is a concise and clearly drafted law which has generally worked well, it has become increasingly outdated in the context of modern banking and finance transactions.
Directors' duties and liabilities under Cayman Islands law
Introduction
The duties and liabilities of the directors of a company under Cayman Islands law arise from:
• the common law – the duties have developed over many years by way of analogy with other legal relationships, particularly the relationship between principal and agent and between trustee and beneficiary.
Jersey Foundations
The Foundations (Jersey) Law 2009 (the "Law") allows for the incorporation of Jersey foundations.
Family Limited Partnerships
A family limited partnership for Jersey law purposes is a limited partnership formed under the Limited Partnerships (Jersey) Law 1994 (the "LP Law") with a view to holding investments and/or other assets on behalf of a wealthy family (a "Jersey FLP").
BVI Court hands down preliminary issues decision in claims brought by liquidators of Bernard Madoff
"feeder fund"
On 16 September 2011 judgment was handed down by the BVI Commercial Court in a number of cases that have been brought by the liquidators of Fairfield Sentry Limited (“Fairfield”), a "feeder fund" into Bernard L Madoff Investment Securities Limited (“BLMIS”), against a number of investors that historically redeemed out of the fund (the "Fairfield judgment").
Carey Olsen AIFM Directive Update - Impact on the Channel Islands
Business as usual until at least 2018
Certainty now and potential for competitive advantages later for Channel Islands Funds and Managers
In the Matter of the Representation of Capita Trustees Limited as Trustee of the Dunlop Settlement
This is a slightly unusual case in that the well-established principles regarding the duty of an outgoing trustee to deliver trust documents to the new trustee were applied in circumstances where (i) there had been a merger of corporate trustees rather than a formal appointment of a new trustee (ii) the documents in question were in the hands of the Jersey Financial Crimes Unit and (iii) the order for costs on an indemnity basis was made against the individual solely responsible rather than against the corporate trustee.
Close-out Netting and Set-off Provisions for BVI, Cayman Islands, Guernsey and Jersey Counterparties
Ogier is counsel to the International Swaps and Derivatives Association, Inc. ("ISDA") in Jersey, Guernsey and BVI and provides netting and collateral opinions which are available to members from ISDA's website and updated on an annual basis.
Jersey Separate and Incorporated Limited Partnerships are now available
New Jersey ILPs and SLPs
Two new forms of limited partnership have recently been introduced under
Jersey law. These are:
• the separate limited partnership ("SLP") (having separate legal
personality); and
• the incorporated limited partnership ("ILP") (being a body corporate).
The New Security Interests (Jersey) Law 201- (the "New SIL") (yet to come into force)
An executive summary
The new Security Interests (Jersey) Law 201- (yet to come into force) (the “New SIL”) was approved by the States Assembly on 19 July 2011 and has been sent to the Privy Council for approval.
Trusts and Fiduciary Group page 1 of 5 In the Matter of the Representation of BB, A and C [2011] JRC
The Royal Court has decided to ratify the actions taken by invalidly appointed trustees, acting in good faith as trustees de son tort, from the date of the ineffective appointments to the date of the Court Order, which validly appointed them. This is the first Jersey judgment which offers guidance as to when, and in what circumstances, it might be appropriate for the Royal Court to exercise its discretion to “ratify” the past actions of a trustee de son tort.
Rectification of a Jersey trust preferred to setting it aside for mistake
In the Matter of DD [2010] JRC 193, 21 October 2010 Commissioner Clyde-Smith, and Jurats Le Breton and Morgan This case concerned an application by the Settlor and New Trustee ("DD") to the Royal Court, for rectification of the trust deed and an associated declaration of trust or in the alternative that the trust be set aside on the basis of mistake.
Segregated portfolio companies
The Segregated Portfolio Company ("SPC") is a single legal entity within which may be established various segregated portfolios. The assets and liabilities of each segregated portfolio are legally separate from those of the other segregated portfolios. When the SPC was first introduced in the Cayman Islands in 1998, the use of the SPC structure was restricted to licensed insurers.
Directors' duties: What are they and to whom are they owed?
The Companies (Jersey) Law 1991 sets out the duties owed by a director of a company in these terms:
"A director, in exercising the director's powers and discharging the director's duties, shall:
a. act honestly and in good faith with a view to the best interests of the company; and
b. exercise the care, diligence and skill that a reasonably prudent person would exercise in comparable circumstances."
Derivatives Transactions with Offshore Counterparties
Ogier is counsel to the International Swaps and Derivatives Association, Inc. (“ISDA”) in Jersey, Guernsey and BVI 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 by banks, prime brokers and other clients to advise on local law issues in connection with their entry into derivatives transactions (or other transactions involving netting provisions) with offshore counterpart
Cross-Border Restructurings using Offshore Companies
In the current economic climate, there has been increased interest from clients and their advisers in using offshore companies in cross-border restructurings. The use of offshore companies in restructurings is often driven by tax and structuring advice, where there is a desire to continue the group operating as a going concern and to achieve a favourable outcome for creditors (usually outside of formal insolvency proceedings).
Laws and Orders brought into force in 2011
The Companies (Amendment No. 5) (Jersey) Regulations 2011 came into force on 23 February 2011. The Regulations amend the
Companies (Jersey) Law 1991 in relation to cross-border mergers.
Listing Businesses in Hong Kong or London Using a Jersey Holding Company
Introduction - Asia
Asia is a vast and growing market, with the Chinese economy being the biggest. China has effectively become the second largest economy in the world after that of the US and is expected to overtake them within the next ten years. There is a significant amount of capital being generated in Asia which is ripe for investment.
Listing Jersey Holding Companies
QUESTION:
Apart from being successful, publicly listed companies, what do the following all have in common?
Treasury shares in a Jersey company
Introduction
Treasury shares are well established in other jurisdictions, and were introduced into Jersey law by the Companies (Amendment No. 9) (Jersey) Law 2008.
Jersey Limited Partnerships
The Limited Partnerships (Jersey) Law 1994 (the "Law") governs Jersey limited partnerships.
Jersey Protected Cell Companies and Incorporated Cell Companies
A cell company is a company that has the ability to create one or more cells with assets and liabilities that are distinct from the assets and liabilities of other cells and the cell company itself. These cells can be used to carry out separate and distinct businesses.
In the Matter of the S Trust (2011) JRC 117
Introduction
The Royal Court has recently handed down a judgment which has reiterated the willingness of the Jersey Court to plough its own furrow and decline to follow English authority when satisfied it is inappropriate to do so.
Security Interests (Jersey) Law 201- passed
The Security Interests (Jersey) Law 201- (the "new Law") has been passed by the States of Jersey and has now been sent to the Privy Council for approval. We anticipate that the new Law will come into effect in the early part of 2012.
Carey Olsen AIFM Directive Update - Impact on the Channel Islands
Business as usual until at least 2018
Certainty now and potential for competitive advantages later for Channel Islands Funds and Managers
Migrations by UK Corporates - The Jersey Perspective
It has been widely reported in the UK press that a number of UK corporates with significant non-UK business interests have considered migrating for tax purposes to Ireland, Switzerland or other lower taxation jurisdictions in an effort to combat what they perceive to be an onerous UK corporate tax regime. A number of such migrations have been completed using new Jersey holding companies, including Shire, Henderson, and Wolseley.
The UK Bribery Act and how it affects businesses in Guernsey and Jersey
The United Kingdom Bribery Act came into force on 1 July 2011. The Act has implications for additional jurisdictions including the Channel Islands. This briefing note explores how the new offence of failing to prevent bribery might impact on Guernsey and Jersey.
A Guide to Funds and Private Equity in Jersey
Jersey: an International Finance Centre
Jersey Funds Regulation in Brief
BVI Proposes Enhancements to its Corporate Legislation
A draft Bill proposing amendments to the BVI Business Companies Act, 2004 (“BCA”) has been circulated for industry consultation.
Security Interests (Jersey) Law 201-
The Security Interests (Jersey) Law 201- (the "Law") has been passed by the States of Jersey and is expected to come into force in 2012. The Law will significantly reform the way in which security may be taken over Jersey intangible property and will enhance the remedies that are available to a secured party on default.
Amendments to the Law on Gambling in Jersey to permit E-Gaming
Under the Gambling (Jersey) Law 1964, as amended (the "Gambling Law") all forms of gambling in Jersey are unlawful save for those expressly permitted by Regulations.
Mauritius - Opportunities and benefits
A jurisdictional guide by Bedell Cristin (Mauritius) Partnership
Clean Tech International structures
Clean Technology or “Clean Tech” is a term coined to cover all things green, spanning from renewable energy to energy efficiency and recycling waste management. Clean Tech often involves new technology and business models that offer returns for investors and customers while achieving that in a way that reduces the use of natural resources, and cuts or eliminates emissions and waste. Examples include the development of renewable energy sources, improvements in carbon emissions and waste management schemes
Creating and Perfecting Security under the New Security Interests (Jersey) Law
The creation of security over intangible movables under Jersey law is currently governed by the Security Interests (Jersey) Law 1983. The new Security Interests (Jersey) Law is awaiting approval by the States of Jersey and the Privy Council and it is anticipated this law will come into force during the first half of 2012.
Listing Specialist Securities on the Channel Islands Stock Exchange
The Channel Islands Stock Exchange (CISX) began operations in October 1998. It is based in St Peter Port, Guernsey and provides a listing facility and screen-based trading. It is within an OECD jurisdiction and in the European time zone.
Acting as a Director of a Cayman Islands Company
The purpose of this memorandum is to give a brief summary of some of the issues which may be faced by a director of a Cayman Islands Company.
Trustee Disclosure The A Settlement [2011] JRC 109
The extent of a trustee's obligation to disclose documents (including correspondence between the trustee and its legal advisors) has been the subject of recent consideration in the A Settlement [2011] JRC 109.
In the matter of H [2011] JRC 070 - application to participate in proceedings
In proceedings in relation to a charitable trust.
The settlor’s widow brought an application to participate in proceedings instituted by a sub-trustee seeking relief in connection with a charitable trust and a compromise agreement in respect of issues arising under the settlor’s will.
In the matter of the representation of Publicis Graphics Group Holdings SA
The Court ordered an ex parte mandatory interlocutory injunction against a nominee shareholder, who had until then refused to comply with the instructions of the beneficial owner of those shares.
Innovations in Limited Partnerships - June 2011
Introduction
Two new types of limited partnership have been introduced in Jersey. These are the separate limited partnership (“Separate Partnership”) and the incorporated limited partnership (“Incorporated Partnership”).
Jersey E-gaming Developments
On 3 March 2011 the States of Jersey voted to approve the modernisation of Jersey’s gambling legislation to allow e-gaming businesses to operate in the Island on a permanent basis.
Jersey intoduces two new limited partnership vehicles:Separate and Incorporated Limited Partnerships
Jersey has introduced two new limited partnership vehicles, Separate Limited Partnerships and Incorporated Limited Partnerships.
Charitable trusts: who can be convened?
A recent decision of the Royal Court in Jersey has, for the first time in the Island, considered the test to be applied for convening parties to an application regarding a charitable trust.
Dunlop on Jersey Company Law
"Dunlop on Jersey Law" is the first comprehensive book to be published on Jersey company law.
Litigation - counting the costs of success
Costs are inevitably a key consideration in the litigation process. One of the first questions clients always ask is "what are our prospects of success?"
Is draft Foundations Law sufficiently different to Trust Law? asks seminar.
A well-attended and in-depth review of Guernsey’s proposed foundations law hosted by Carey
Olsen tackled some of the questions posed by Commerce and Employment in their consultation
document.
In particular, the speakers were at pains to point out how foundations should not be confused
with or considered in the same way that the island’s fiduciary sector handles trusts.
Transfer by way of continuation out of the Cayman Islands
An exempted company incorporated in the Cayman Islands may apply to be de-registered by way of continuation pursuant Section 206 of the Companies Law (2010 Revision) (the "Law"). A company (the "Company") is capable of being de-registered pursuant to the Law if:
Transfer by way of Continuation into the Cayman Islands
A company incorporated outside the Cayman Islands may apply to be registered by way of continuation as an exempted company limited by shares under Section 201 of the Companies Law (2010 Revision) (the "Law"). A company (the "Company") is capable of being registered by way of continuation as an exempted company under the Law if:
The Cayman Islands - advantages as an offshore jurisdiction
Absence of tax
The Cayman Islands have no direct taxes of any kind. There are no corporation, capital gains, income, profits or withholding taxes.
Cayman Islands Companies Law
This briefing provides an overview of some of the principal provisions of the Companies Law (as amended) (the "Companies Law").
Schemes of arrangement under Cayman Islands law
What is a scheme?
A scheme is a court-sanctioned compromise, arrangement, reconstruction or amalgamation entered into between a company and its creditors or members (or any class of them) in accordance with section 86 (and, for reconstructions and amalgamations, section 87) of the Companies Law (as amended). A scheme must involve an element of accommodation on each side for it to be effective as a scheme of "arrangement".
Merger of Companies
Mergers Overview
The Companies (Jersey) Law 1991 (the “Law”) has been
amended by the Companies (Amendment No.5) (Jersey)
Regulations 2011 (the “Regulations”) which came into
force on 23 February 2011 to:
Innovations in Limited Partnerships Client Briefing
Introduction
Two new types of limited partnership have been introduced in Jersey. These are the separate limited partnership (“Separate Partnership”) and the incorporated limited partnership (“Incorporated Partnership”).
Opportunities and challenges: Jersey’s response to international markets
As we move into 2011 many opportunities and challenges face Jersey, but the Island is well equipped to turn them to its best advantage. Partner and head of Crill Canavan’s Commercial Department, Advocate Paul Wilson, looks at how international markets and client demands are influencing Jersey’s development in financial and other services, and how its professionals are responding.
New regulations to make Jersey law on company mergers more flexible
Introduction Jersey's legislature has approved the Companies (Amendment No.5) (Jersey) Regulations 2011 (the Regulations) which permit a Jersey company to merge with a non-Jersey company. The Regulations come into force on 23 February 2011. The ability to undertake cross border mergers may be useful in a variety of cases including where they can be implemented without triggering a disposal for foreign capital gains tax purposes. This briefing sets out the principal provisions of the Regulations.
Representation of LL: application by a trustee for approval of a momentous decision
Representation of BNP Paribas Jersey Trust Corporation Limited concerning the position of a trustee on notice of an adverse claim
The New Jersey Merger Regime under the Companies (Jersey) Law 1991
Until recently it was only possible to directly merge a Jersey company with another Jersey company. In order to merge a Jersey company with a foreign company under Jersey law it was necessary to migrate the foreign company to Jersey first and then follow the then existing merger provisions.
Asian growth: building on Cayman's success
The September 2010 edition of The Global Financial Centres Index (GFCI), which provides profiles, ratings and rankings for 75 financial centres, highlighted a familiar trend noting that Asian centres continue to exhibit good growth with Shanghai entering the top 10 and Seoul gaining four places and moving into the top 25 for the first time.
Situs of Intangible Assets: FG Hemisphere Associates LLC v Democratic Republic of Congo
The recent case of FG Hemisphere Associates LLC v Democratic Republic of Congo and La Generale des Carrieres et de Mines ([2010] JRC 195) considered the issue of the situs of a debt.
Representation of BNP Paribas Jersey Trust Corporation Limited
Representation of BNP Paribas Jersey Trust Corporation Limited concerning the position of a trustee on notice of an adverse claim
British Virgin Islands: Continuations In and Out
Companies that have been incorporated in other jurisdictions may be permitted to change their jurisdiction of incorporation to the British Virgin Islands (“BVI”); equally BVI incorporated companies may look to migrate to other jurisdictions. Under BVI law this process is known as “continuation” - either “in” or “out” depending on whether the BVI is the end point or the starting point.
Statutory Mergers in the British Virgin Islands
The statutory merger regime in the British Virgin Islands (“BVI”) is straightforward, well established and effective. It has been used on a number of high profile, public transactions including, for example, Apax Partners’ $1.6 billion buyout of Tommy Hilfiger Corporation, and most recently by Essilor International SA for its recommended US$565 million takeover of NASDAQ listed FGX International Holdings Limited.
BVI Companies: Rights and Remedies of Members
The rights attaching to shares in a British Virgin Islands (“BVI”) business company are determined by the provisions of the BVI Business Companies Act, 2004 (as amended) (the “Act”) and that company’s memorandum and articles of association
Plans and Schemes of Arrangement in the British Virgin Islands
Under the BVI Business Companies Act, 2004 (the “Act”) there are two types of court supervised arrangements.
Private Client Handbook 2010/11
Country Q&A
In the matter of The Representation of AA [2010] JRC 164
The distinction between “forum for administration” clauses and “exclusive jurisdiction” clauses in the context of trusts
Exclusive Supply Contracts: When Are They Anti-Competitive?
Generally, undertakings are prohibited, pursuant to Article 8 of the Competition (Jersey) Law 2005 (the “Law”), from making arrangements with other undertakings that have the object or effect of hindering to an appreciable extent competition of the supply of goods or services within Jersey. Such arrangements are known as anticompetitive arrangements. The Jersey Competition Regulatory Authority (the “JCRA”) is responsible for, amongst other things, enforcing the provisions of the Law.
Jersey Competition Law – a brief guide to Mergers and Acquisitions
The Competition (Jersey) Law 2005 (the “Law”) generally prohibits any agreements, business practices and conduct which substantially lessen competition in Jersey. The Jersey Competition Regulatory Authority (the “JCRA”) is responsible for enforcing the Law. This briefing guide focuses on Part 4 of the Law (which came into force on 1 May 2005), regulating certain mergers and acquisitions in Jersey.
Segregated Portfolio Companies
The Segregated Portfolio Company (“SPC”), a variant of the exempted company, was first introduced in the Cayman Islands in May 1998 by an amendment to the Companies Law. The concept of an SPC is that a company, which remains a single legal entity, may create segregated portfolios (“Portfolios”) such that the assets and liabilities of each Portfolio are legally separate from the assets and liabilities of any other Portfolios.
Family Limited Partnerships
A family limited partnership for Jersey law purposes is a limited partnership formed under the Limited Partnerships (Jersey) Law 1994 (the "Law") with a view to holding investments and/or other assets on behalf of a wealthy family (a "Jersey FLP").
"ACEIS Rules" and "RCIS Rules" - Transitional Provisions - Updating Documentation
The Authorised Closed Ended Investment Schemes Rules, 2008 (the “ACEIS Rules”) and the Registered Collective Investment Scheme Rules, 2008 (the “RCIS Rules”) – Transitional Provisions – Updating Documentation
Jersey Separate and Incorporated Limited Partnerships
Two new forms of limited partnership will be available under Jersey law very soon. The changes are expected to take effect during Q1 2011, and will allow:
Chapter 15 Recognition: Fairfield Sentry Limited (in Liquidation)
As well as issuing claims in mistake and restitution in the BVI Commercial Court and the US State Supreme Court, the liquidators of Fairfield Sentry Limited (“the Fund”) also petitioned for and, on 22 July 2010 obtained, Chapter 15 recognition in the United States Bankruptcy Court for the Southern District of New York.
Cayman Islands exempted limited partnerships
The Exempted Limited Partnership Law (as amended) (the "ELPL") governs the formation and operation of Cayman Islands Exempted Limited Partnerships ("ELP").
Jersey Schemes of Arrangement
This client briefing provides a general overview ofschemes of arrangement for Jersey companies under theCompanies (Jersey) Law 1991 (the “Companies Law”).A scheme of arrangement can involve almost any kind ofcorporate reorganisation, merger, acquisition orrestructuring so long as the appropriate approvals andcourt sanction are obtained. In the context ofrestructurings, there is limited precedent in Jersey,although Jersey schemes of arrangement have beenused as part of the Drax and Telewest restructurings.
AIM listings using a Jersey Company
Jersey incorporated companies are proving a popular choice for those seeking to establish a listing on the Alternative Investment Market of the London Stock Exchange ("AIM"). Typically, an established group of companies will be restructured so as to introduce a new Jersey incorporated parent company, the securities of which are then admitted to trading.
Redemption of, and purchase of its own, shares by a Jersey company
Redeemable shares and how they may be redeemed, and the purchase of its own shares, by a Jersey company, have been within the Companies (Jersey) Law 1991 since enactment, but the Companies (Amendment No. 8) (Jersey) Law 2006 and the Companies (Amendment No. 9) (Jersey) Law 2008 far-reachingly reconfigured the approach to creditor (and shareholder) protection.
Listing Asian Businesses in Hong Kong or London Using a Jersey Holding Company
Asia is a vast and growing market, with the Chinese economy being the biggest. China has effectively become the second largest economy in the world after that of the US and is expected to overtake them within the next ten years. There is a significant amount of capital being generated in Asia which is ripe for investment.
Limited Partnerships (Guernsey) Law, 1995 (as amended)
The Limited Partnerships (Guernsey) Law, 1995 (as amended) (the "Partnerships Law") was enacted to provide the finance industry in Guernsey with an additional flexible vehicle. It provides a limited liability option for a person who wishes to participate financially in a partnership up to a fixed capital amount but without taking part in the management of its affairs. Guernsey limited partnerships are commonly used in the following areas:
Listing Asian Businesses in Hong Kong or London Using a Jersey Holding Company
Asia is a vast and growing market, with the Chinese economy being the biggest. China has effectively become the second largest economy in the world after that of the US and is expected to overtake them within the next ten years. There is a significant amount of capital being generated in Asia which is ripe for investment.
Incorporating a Guernsey Company
Why Guernsey? Guernsey is a leading financial centre of the highest reputation and standards. Its continuing success as a financial centre is based on various factors, including economic and political stability, the independence it enjoys, an easily accessible justice system and an independent regulatory regime. Its low tax status, proximity to the financial markets of Europe and sophisticated financial industry infrastructure also contribute to its success.
Cell Companies in Guernsey
This Briefing provides a summary of the main provisions of Guernsey law relating to protected and incorporated cell companies.
Incorporating a Guernsey Company
This memorandum has been prepared for the assistance of our clients in connection with incorporating a Guernsey company under the Companies (Guernsey) Law, 2008 (as amended) (the “Companies Law”). It is intended to provide only a summary of the main legal and general principles and is not intended to be comprehensive in scope. It is strongly recommended that you seek specific legal advice on such matters and we would be pleased to assist in this respect. A series of briefings on other specific aspects of Guernsey companies law have been produced by Ogier and available on request or on our website, www.ogier.com
ILPA Private Equity Principles - Aligning the Interest of Limited Partners and General Partners
In September 2009 the Institutional Limited Partners Association (the “ILPA”) published a set of private equity principles (the “Principles”) which aim to set out “preferred private equity terms” in the context of realigning the interests of the limited partner (“LP”) with the general partner (“GP”). The Principles were developed from the input and feedback of institutional private equity investors, senior investment officers and other members of the ILPA and are presented as a set of industry best practices.
In re The Lochmore Trust and In re The First Conferences Limited 2003 Employee Benefit Trust
In re The Lochmore Trust and In re The First Conferences Limited 2003 Employee Benefit Trust These two cases have been handed down since our briefing note In Re The A Trust in February 2010 which considered the basis on which the Jersey Courts will set aside a trust or disposition into trust on the ground of mistake.
Jersey Limited Partnerships
A limited partnership seeks to combine the flexibility and "tax transparency" offered by a partnership structure with the benefits, for limited partners, of limited liability offered by a company. The Jersey limited partnership regime has particular advantages over other offshore jurisdictions: no Jersey general partner is required, there is no upper limit on the number of limited partners, there is limited information required to be made publicly available, there is no audit or annual return requirement and a limited partner may have greater involvement in management than in some other jurisdictions.
Jersey Cell Companies
Jersey introduced Cell Companies into its law in February 2006 Protected cell companies (PCCs) were first developed in Guernsey in the late 1990s. Originally to attract captive insurance work to Guernsey, they proved popular and versatile, and were soon found to be a useful vehicle in collective investment fund structures. Other jurisdictions, including Jersey, the Isle of Man, Cayman Islands and Dublin, followed suit with legislation based upon the Guernsey model.
Deal or no deal? The tribunal Article
March 2010 - Mourant du Feu & Jeune's employment law team presented a mock tribunal, in conjunction with the Jersey Branch of CIPD, to seek to give employers an understanding of what is involved in defending a tribunal claim. Carla Benest, an Associate of Mourant du Feu & Jeune, explains more.
Examining the Consequences of Non-Compliance with the Companies Winding Up Rules
HSH Cayman v ABN AMBRO Bank – Examining the Consequences of Non-Compliance with the Companies Winding Up Rules, Cayman Islands
Securities and Investment Business Act, 2010
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
Jersey Partnership Law Update
Jersey is poised to introduce two new types of legal vehicle: the separate limited partnership ("SLP") and the incorporated limited partnership ("ILP"). These new structures will complement the range of vehicles already available in Jersey, giving businesses greater flexibility as to how to structure their operations, and fund and private equity promoters additional options for the creation of their Jersey investment and carried interest vehicles. But what do these two new partnerships have to offer and how are they different from each other and the limited partnerships already available in Jersey? What are their key features?
Relocating to Jersey: You and your business
For decades, Jersey has opened its doors to a limited number of new residents – individuals and businesses attracted not only by the Island's charm and beauty, but also by the many advantages to be gained from living here. Jersey is a particularly attractive location for high net worth individuals and their families, who benefit from the very highest standards of living and the fiscal autonomy Jersey enjoys from the United Kingdom. The Island has close proximity to Europe but is not part of the European Union.
SAFE HAVEN
For many, the recent conclusion of the Alhatnrani dispute, Jersey's most expensive court case, has confirmed that the island remains a safe and well-regulated jurisdiction, not only to establish trusts in, but also as a secure destination in which to conduct commercial litigation when things go wrong.
Current developments in Cayman’s legal and regulatory environment
Perception shapes behaviour and in recent months many interested service providers and governmental agencies in rival financial centres have sought to attract business away from Cayman by painting a picture that clear-sighted observers would not recognise. Rumours of the demise of Cayman have been exaggerated to the point of fabrication. An analysis of some key metrics of Cayman’s financial services industry demonstrates that it is faring well in absolute terms and extremely well relative to its rivals. The following review of Cayman’s robust health is provided by Cayman Finance.
Winding-up, Dissolution & Reinstatement of a Jersey Company: summary of processes and procedures
The aim of this briefing note is to provide an outline on the dissolution of a Jersey incorporated company. The dissolution of a company occurs either (i) when it has been struck off the Register of Companies after a winding up; (ii) once a declaration en désastre (the "Declaration") has been declared; or (iii) where it has otherwise been struck-off. Part 21 of the Companies (Jersey) Law 1991, as amended, (the "Companies Law") provides the process for winding up a Jersey incorporated company pursuant to which there are 4 possible routes that can be taken. The Bankruptcy (Désastre) (Jersey) Law 1990, as amended, (the "Désastre Law") provides for the process of the Declaration.
Jersey Corporate Cross Border Insolvent Reconstruction and Moratorium Procedures
The liquidity crisis has increased the need for creative procedures to avoid sudden death bankruptcy in order to salvage existing value.
Putting Jersey Companies into English Administration
A Jersey company or one of its creditors may wish the company to be placed into administration in England under Schedule B1 of the UK's Insolvency Act 1986 (the "Act").
Private Trust Companies
A private trust company ("PTC") is a useful vehicle to consider in the planning and establishment of trust structures for wealthy families. Rather than transferring assets to an offshore service provider's professional trustee company, certain families may prefer to establish their own corporate trustee (a PTC) to act as the trustee of the trusts which they plan to create.
Proposed Changes to the Rules on Jersey Fund Prospectuses
The Jersey Financial Services Commission is proposing amendments to the regulation of prospectuses issued by Jersey "certified funds" - that is, collective investment funds established under the Collective Investment Funds (Jersey) Law 1998, which includes Jersey expert funds.
Foundations: Mergers
The Foundations (Jersey) Law 2009 (the "Law") allows for the establishment of Jersey foundations, and adds significantly to the structuring opportunities available to clients selecting Jersey as a jurisdiction for private wealth management purposes.
Cell Companies: the Segregation of Assets and Liabilities
The concept of cell companies was first introduced to Jersey in February 2006. In addition to the widely recognised principle of the protected cell company ("PCC"), a new concept of incorporated cell company ("ICC"), the first of its kind, was also implemented.
Islamic Finance and the use of Jersey Special Purpose Vehicles
As a politically stable and fiscally advantageous financial centre, Jersey 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.
Acquisition by a company of its own shares
This briefing note provides an overview of some of the commercial reasons for and the technical legal requirements of a company wishing to acquire its own shares (also referred to as “share buy-backs”).
Financial Assistance in Guernsey
This briefing note aims to provide a concise outline of Guernsey’s financial assistance regime.
Treasury Shares
This briefing note examines the potential benefits of treasury shares and some practical points companies should consider if they want to take advantage of the mechanism provided for under The Companies (Guernsey) Law, 2008 (the “Law”) for holding shares in treasury.
Payment of Dividends and Distributions by a Guernsey Company
This briefing note explains the distinction between the concepts of dividends and distributions before setting out the main steps involved in paying out dividends and distributions under The Companies (Guernsey) Law, 2008 as amended (the “Law”).
Dissolution of Guernsey companies
This briefing note aims to provide an outline of the different processes of voluntary and compulsory winding up under The Companies (Guernsey) Law, 2008 (as amended) (the “Law”). It does not cover the specific provisions on the winding up of protected cell companies and incorporated cell companies. Further information on the effect of the Law on the winding up of these company structures can be found in our separate briefing notes on those subjects.
Updater - 2009: Current developments in Cayman’s legal and regulatory environment
In this issue: Cayman in calm waters
Jersey Cell Companies
Jersey introduced Cell Companies into its law in February 2006. Protected cell companies (PCCs) were first developed in Guernsey in the late 1990s. Originally to attract captive insurance work to Guernsey, they proved popular and versatile, and were soon found to be a useful vehicle in collective investment fund structures. Other jurisdictions, including Jersey, the Isle of Man, Cayman Islands and Dublin, followed suit with legislation based upon the Guernsey model.
An update: Jersey Companies Law Amendments provide increased flexibility
Certain provisions of the Companies (Amendment No. 9) (Jersey) Law 2008 (Amendment No. 9) come into force on Friday 27th June 2008.
Incorporating a Guernsey Company
Guernsey is a popular jurisdiction in which to incorporate companies for use on a wide range of transactions, including investment funds, private equity, structured finance and securitisation. Guernsey companies are also capable of being listed on the Main Market and Alternative Investment Market of the London Stock Exchange as well as, among others, the New York Stock Exchange, Euronext and the Channel Island Stock Exchange
Setting up an Asset Management Business in Jersey
There is growing interest among asset managers in the benefits of relocating all or part of their business to an offshore jurisdiction. High among the list of candidates is Jersey in the Channel Islands.
This Briefing has been prepared for asset managers interested in the benefits of setting up their business in Jersey and will summarise some of the practical considerations that should be borne in mind when contemplating such a move.
Private Trust Companies
Private trust companies ("PTCs") are able to operate in Jersey pursuant to an exemption from the registration requirements which apply in relation to financial services business pursuant to the terms of the Financial Services (Jersey) Law 1998 (the "1998 Law").
The 1998 Law provides that no person shall carry on (or hold itself out as carrying on) financial services business in or from within Jersey, and that a Jersey incorporated company shall not carry on (or hold itself out as carrying on) financial services business anywhere in the world, unless that person is acting in accordance with the terms of a registration under the 1998 Law. A breach of this provision is punishable by imprisonment for a period of up to seven years, or a fine, or both.
Cayman Companies: New Merger and Consolidation Provisions
Following the amendments to the Companies Law (2007 Revision) (“Companies Law”) changing the provisions of that law relating to the winding up of companies, further amendments have been enacted, introducing new provisions for mergers and consolidations of companies. These amendments, contained in the Companies (Amendment) Law, 2009 are expected to come into effect before the end of April 2009.
Listing Offshore Companies on the London Stock Exchange’s Alternative Investment Market (“AIM”
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 AIM. It is not, however, 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. Briefings on other subjects have been produced by Ogier and are available on request. This briefing has been prepared on the basis of law and practice as at 1 April 2008.
Merging Jersey Companies
The Companies (Jersey) Law 1991 (as amended) (the "Companies Law") offers a procedure whereby two or more Jersey incorporated companies may merge into a single entity. As well as having significant tax advantages (as no asset transfers are necessary), the procedure has the added benefit of being straightforward and transparent. With the support of creditors and shareholders, the whole process can also be carried out in a relatively short timescale.
Jersey Companies Law Amendments
The Companies (Amendment No.2) (Jersey) Regulations 2008 (the "Regulations") and the Companies (Amendment No. 9) (Jersey) Law 2008 (the "Law") were approved by the States of Jersey on 15 and 16 January 2008, respectively. The Regulations came into force on 22 January 2008. The Law (save for Articles 17 to 22) came into force on 27 June 2008. Articles 17 to 22 (which contain "Accounts and Audit" provisions) came into force on 1 August 2008.
Jersey Corporate Insolvency: The Two Regimes
There are two principal regimes for corporate insolvency in Jersey: désastre and winding-up. This Briefing seeks to highlight the major features of each and some of the differences between the two.
A Guide to Curatorships in Jersey
A curator is someone appointed by the Royal Court under the Mental Health (Jersey) Law, 1969 to conduct the affairs of someone found by the court to be an interdict.
A Guide to Tutelles in Jersey
The tutelle procedure has its origins in the Norman customary law of the Island of Jersey and has developed over time as a means of protecting the interests and managing the affairs of children considered too young to do so for themselves.
Jersey Foundations
The draft Foundations (Jersey) Law 200- was approved by the States of Jersey on 22 October 2008, and is currently awaiting Privy Council approval before it can be brought into force, probably during the Spring of 2009.
Protected Cell Companies and Incorporated Cell Companies under Jersey Law
The concept of the cell company originated in Guernsey over a decade ago. It was introduced to Jersey in the form of the protected cell company (the "PCC"), and the incorporated cell company (the "ICC"), in February 2006, by way of an amendment to the Companies (Jersey) Law 1991 (the "Companies Law")1. The most recent amendments to the Companies Law, introduced in Jersey this year, have added to and enhanced the applicable provisions, introducing additional flexibility to the concepts of both PCCs and ICCs.
An important Trust Case - Jersey Royal Court decision in Mubarak v Mubarik
Trustees, marriage breakdown and the enforcement of foreign orders In the Matter of The IMK Family Trust (Mubarak v Mubarik and others) [2008] JRC 136 Royal Court – judgment given 15 August 2008
Goods and Services Tax
The Goods and Services Tax (Jersey) Law 2007, as amended (the "Law") and the Goods and Services Tax (Jersey) Regulations 2007 make provision for goods and services tax ("GST") to be charged in Jersey.
Jersey Companies Law Amendment
The Companies (Amendment No.2) (Jersey) Regulations 2008 (the "Regulations") and the Companies (Amendment No. 9) (Jersey) Law 2008 (the "Law") were approved by the States of Jersey on 15 and 16 January 2008, respectively. The Regulations came into force on 22 January 2008. The Law (save for Articles 17 to 22) came into force on 27 June 2008. Articles 17 to 22 (which contain "Accounts and Audit" provisions) are expected to be brought into force by 1 August 2008.
EU 'WHITE LIST' OMITS THE DIAMOND FOR THE DIRT
The publication in May 2008 of a EU draft ‘white list’1, countries considered to have the equivalent controls on money-laundering to EU member states, has caused something of a storm amongst the Crown Dependencies; they have been omitted from the list. The purpose of the list is to determine those countries in which transactions demand less scrutiny.
The Insurance Business (Amendment No.5) (Jersey) Law 2007
The Insurance Business (Amendment No. 5) (Jersey) Law 2007 came into force on 19 January 2007. The Law amends Schedule 2 of the Insurance Business (Jersey) Law 1996 to require the Royal Court to ask the views of the Commission, rather than the Minister for Economic Development, in relation to proposed transfers of insurance business.
Codes of Practice for Deposit-Taking Business
In July, the Commission issued Codes of Practice for Deposit-Taking Business (the “Codes”). The Codes follow a similar format, and adhere to similar principles, to the Codes of Practice already applicable to other regulated financial services businesses in Jersey.
The Incorporated Cell Company
Published in Captive and ART Review - February 2007
Guernsey introduced a new segregated cell company structure in May 2006. The introduction of the legislation followed soon after the creation of the structure in Jersey in February 2006.
The Incorporated Cell Company
Published in Captive and ART Review - February 2007
Guernsey introduced a new segregated cell company structure in May 2006. The introduction of the legislation followed soon after the creation of the structure in Jersey in February 2006.
